Law Test 3

Front 1

What did the court rule in Stanford vs Kentucky(1989)

Back 1

Scalia wrote in Standford v. Kentucky that states could execute sixteen and seventeen-year-old offenders.
5-4 Decision. Majority: Scalia, Kennedy, Rehnquist, White, and O’Connor. Dissent: Brennan, Blackmun, Marshall, Stevens.
Reversed in Roper v. Simmons (2005)

Front 2

Since the late 1990s, what has been the trend with regard to the number of executions in the United States?

Back 2

They were falling from the administration of Clinton and well into the administration of Bush.
Clinton’s Antiterrorism and Effective Death Penalty Act of 1996 was supposed to limit appeals by prisoners, but it did not have much of an impact because of other trends. Executions peaked in 1999
↓Crime, ↓public support for death penalty, ↓death sentences by juries, ↓# executions
↑number of people freed from prison due to faulty convictions, ↑limits on executions

Front 3

Pursuant to Court rulings, can a judge impose the death penalty without the involvement of a jury?

Back 3

Judges, without the concurrence of jurors, could not impose death sentences. (2002)

Front 4

Does the Eighth Amendment limit government’s ability to execute a mentally retarded defendant?

Back 4

Justices ruled that the execution of mentally retarded violated the Eight Amendment’s ban on cruel and unusual punishment.
Yes, determined in Atkins v. Virginia (2002) by a vote of 6-3. Overturned a prior ruling from 1989.

Front 5

What is the impact on a lower court ruling when the Court votes 4-4 (due to a Justice’s recusal?

Back 5

Supreme court justices cannot be replaced in a given case; ties at the supreme court amount to an affirmance of the lower court.
Because of this, the justices are sometimes reluctant to recuse themselves. Additionally, there are no formal rules governing when Supreme Court justices must withdraw (unlike on the lower federal courts).
*Context: Cheney v. United States District Court, Scalia did not recuse himself even though many people (including Breyer) urged him to do so.

Front 6

What was the nature of Justices O’Connor and Stephen Breyer’s relationship?

Back 6

O’Connor found an ally in Breyer and they ultimately became closer than any other pair of justices.
Both Breyer and O’Connor liked to take trips, but more importantly, they were problem solvers. They liked to go abroad to discuss and implement practical solutions.
Toobin argues they were the “two least neurotic personalities on the court”.

Front 7

What did the Court rule in Richmond v. Croson (1989)?

Back 7

It applied strict scrutiny to laws that might help minority groups. It applied strict scrutiny to set aside programs that explicitly required a degree of racial balance.
The city of Richmond, VA had a local ordinance requiring businesses contracting with the city to set a minority percentage quota for subcontracts. Croson lost a contract because it did not have the appropriate minority subcontractors.
The Court ruled in favor of Croson, and struck down the set-aside program by a 6-3 vote based on a violation of the 14th Amendment’s Equal Protection Clause.

Front 8

What is the effect of the Court’s historic footnote 4 in United States v. Carolene Products (1938) as it pertains to legislation affecting economic or property rights?

Back 8

In cases about economic or property rights, the justices would defer to the political process. But when it came to laws that appeared to be targeted at racial minorities or other discrete and insular minorities, the Court would apply more searching judicial scrutiny.
Basically, judges would stay out of matters concerning economic/property right legislation.

Front 9

What is the usual impact on legislation when the Court employs the “strict scrutiny” standard in evaluating it?

Back 9

The law is usually doomed when it comes under Strict Scrutiny.
*This is probably because it is difficult to prove that there is a “compelling governmental interest.”

Front 10

What did the Court rule in Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003)?

Back 10

Ruling: “Based on decades of experience, amici have concluded that a highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential to the military’s ability to fulfill its principal mission to provide national security.” (Wasn’t this from the military brief written by Carter Phillips; not the Supreme Court ruling? Pg 213-214)
The Supreme Court ruling:
Grutter v. Bollinger: upheld U. Michigan Law School affirmative action 5-4
Gratz v. Bollinger: ruled in favor of rejected U. Michigan undergrad 6-3

Front 11

How did the policies of the United States’ three major service academies – West Point, Annapolis, and Colorado Springs – impact the Court’s decision?

Back 11

West Point, Annapolis, and Colorado Springs all practiced race-conscious affirmative action in admissions and it created a more highly qualified and racially diverse service academy.
The brief implicitly asked the question, “If affirmative action was good enough for the service academies, why wasn’t it good enough for the University of Michigan?”

Front 12

What did the Court rule in Regents of the University of California v. Bakke (1978)?

Back 12

The Court struck down a rigid quota system for minorities at a state medical school. It more or less stated that universities were not allowed to use a quota system, but are allowed to use race as one fact in admissions. Affirmative action was justified for University admissions (according to Lewis Powell’s idea that it provides a “net benefit to the society as a whole”, rather than being a “handout”)

Front 13

Regarding Grutter v. Bollinger and Gratz v. Bollinger, what was the Bush’s administration’s position in the case?
What judicial standard did the Court utilize in analyzing the programs at issue?  
Which former President supported the University’s programs?

Back 13

They applied strict scrutiny to this case because it involved affirmative action questions. Bush opposed the Michigan program. He said he strongly supports diversity of all kinds, including racial diversity in all higher education. He thought the quota system used by Michigan University was unfair.

Former president Theodore Roosevelt supported these issues.
President Gerald R. Ford supported his alma mater even though he liked to keep his distance from political controversy after leaving office. He took a public stand and enlisted the help of many influential people to support the University of Michigan. (Pg 212-213)

Front 14

What is an “amicus curiae”?

Back 14

Someone who is not a party to a case who offers information that bears on the case, but who has not been solicited by any of the parties to assist a court
Also known as “green briefs” in the Supreme Court, the phrase means “friends of the court”.
*Many were filed in the affirmative action cases, the most notable from ex-military officers and fortune 500 companies

Front 15

What is Guantanamo Bay?

Back 15

A US Naval Base situated on a bay in Cuba. It holds prisoners and other top secret “threatful” people to the US.
The US technically rents it, but Castro does not accept payment.

Front 16

In 2002, what term did the Bush Administration apply to the individuals transferred to Guantanamo Bay for confinement?

Back 16

Enemy Combatants

Front 17

What did the Court rule in Rasul v. Bush (2004)

Back 17

Guantanamo detainees did have the right to challenge their incarceration in a U.S. District Court.

Front 18

Which Justices sided with the Bush Administration’s position?

Back 18

Scalia, Rehnquist, and Thomas dissented.

Front 19

As of the publication of The Nine, how many Presidents have served in office? Chief Justices?

Back 19

43 Presidents
16 Chief Justices--Roberts is the 17th (pg 253)

Front 20

Generally speaking, each year approximately what percentage of the Court’s opinions are unanimous?

Back 20

40 Percent.
Also, many cases have only a mild dissent or two

Front 21

What was John G. Roberts’ background prior to joining the Court?

Back 21

Roberts was born in Buffalo, NY. He spent most of his childhood in Indiana. Father was an executive in steel industry. Captain of his high school football team, best student in high school class. Graduated Harvard College (Summa cum laude), and Harvard Law school (Magna cum laude). Excelled without making enemies. Editor of the Law Review. Judicial clerk on Second CircuitJoined the Reagan Revlution. Law Clerk to Rehnquist. Spent 4 years in the office of Reagan’s White House counsel. 1988—principal deputy to Solicitor General Kenneth Starr. Argued thirty nine cases. 1992—nominated to D.C. Circuit but failed confirmation. Very successful Supreme Court practice, mainly representing large corporations. 2003—confirmed as judge for D.C. Circuit.

Front 22

What percentage of votes is needed in order to bring a judicial nomination or a piece of legislation to a vote in the U.S. Senate?

Back 22

They needed 60 votes, not a majority which created a filibuster in the Senate.
Three Fifths Majority.

Front 23

According to author Jeffrey Toobin, what are the primary goals of the conservative judicial movement?

Back 23

Confirmation of very conservative judges was the central concern of the Republican Party.

Front 24

Which prominent member of the Bush administration touted Antonin Scalia to replace William Rehnquist as Chief Justice of the United States Supreme Court (“Court”)?

Back 24

The Vice President; Cheney

Front 25

While serving on the D.C. Circuit appeals court in 2005, how did John Roberts vote with regard to the military tribunals established by the Bush administration to hear claims of prisoners held at Guantanamo Bay?

Back 25

He approved the Bush plan that had been developed in response to O’Connor’s remarks that detainees should receive some sort of due process of law.
Roberts sided with Bush, holding that the Bush administration did not have to comply with the international treaty, because the Geneva Convention cannot be judicially enforced.

Front 26

According to the author Jeffrey Toobin, what was the primary obstacle to the confirmation of Harriet Miers being confirmed to the Court

Back 26

Her commitment to protecting the power of the executive branch????
I think it was her lack of judicial qualifications, and that she couldn’t convince the people that she was capable. Not sure though.

Front 27

How long after William Rehnquist’s death did President Bush wait to nominate John Roberts as Chief Justice?

Back 27

Less than 48 hours after Rehnquist’s death.

Front 28

What was historically unique regarding the demise of Harriet Miers’ nomination to the Court?
What was her legal background? Who devised her so-called “exit strategy”? What was that strategy?

Back 28

Miers was the only nominee to withdraw her name from consideration by the Senate and she had a lack of record. She was staff secretary at the White house and then deputy chief of staff.  Charles Krauthammer devised her exit strategy; He said senators should ask for privileged documents from Miers’s White House Tenure, and the President should Refuse to turn them over. The request would create a conflict of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information.

Front 29

How did Justice Sandra Day O’Connor view Samuel Alito’s nomination to replace her on the Court?

Back 29

She was shocked because Alito had opposite views on many of O’Connor’s previous cases. She felt her reputation of balanced was being tarnished.

Front 30

What was John Roberts’ leadership style as Chief Justice? How did it affect the nature of the Court’s weekly conferences?

Back 30

He pushed the court toward narrow decisions that could command unanimous support. He made his colleagues work together and talk more. It made the court and their conferences “cheerier.”

Front 31

Who confirms nominees to the Court?
What vote is required?

Back 31

Senators; simple majority of 50 or more.

Front 32

What was the general theme of the legal publication Active Liberty? Who wrote it?

Back 32

The general theme of the book is that Supreme Court justices should, when dealing with Constitutional issues, keep "active liberty" in mind,[1] which Justice Breyer defines as the right of the citizenry of the country to participate in government (and also protection from governmental coercion).

Written by Breyer.

Front 33

What judicial standard did Justice O’Connor devise to evaluate the constitutionality of legislation affecting a woman’s right to terminate a pregnancy?

Back 33

She put this question to be tested under the undue burden standard.

Front 34

INTRODUCTION TO LAW AND THE LEGAL SYSTEM
CHAPTER IX: FAMILY LAW

What facts were at issue in Moore v. City of East Cleveland (1977)?  What did the plurality opinion of the Court (i.e. four justices) hold, and on what constitutional provision did they base the opinion?

Back 34

Moore had non “nuclear” family living in her home which exceeded the occupancy limit for the City of East Cleveland, Ohio, zoning codes. The City of East Cleveland charged her with criminal charges (five days in jail and a fine of 25 dollars). The Ohio Court of Appeals affirmed this decision. The US Supreme court ruled that Ohio has the right to zone, but they do not have the right to be that deeply involved in someone’s family life. The liberties of the family, whether it be nuclear or extended, cannot be denied by the State. It violated her right to due process and taking of property without just compensation (14th Amendment).

Front 35

What did the Court hold in Pierce [v. Society of Sisters (1927)] regarding the State law at issue?

Back 35

Pierce and other cases like it set a precedent that stated that child rearing allows relatives not of the nuclear family to be constitutionally protected if they are major players in the child rearing process. Especially in times of death or economic need. The State may regulate schools, but it is the parent or guardian’s right to decide upon the appropriate education for their children and how to raise them.

Front 36

At the time of the Court’s ruling in Loving v. Virginia (1967), how many States prohibited interracial marriage?  Under what constitutional provision(s) did the Court strike down the law?

Back 36

16 States. It based its decision on a violation of the equal protection clause under the Fourteenth Amendment. They were also denied liberty without Due Process under the Due Process Clause of the Fourteenth Amendment.

Front 37

What did the Court hold in Zablocki v. Redhail (1978)?

Back 37

The Supreme Court ruled that it was a violation of the Equal Protection Clause under the Fourteenth amendment to require residents of a state whom were also parents but behind in their child support payments, to obtain a court order granting them permission to marry. (The absolute denial of a right is usually struck down)

Front 38

Has the federal government ever defined “marriage”?  If so, in what law?

Back 38

Yes, under the United States Code Section 7

Front 39

What did the court hold in Langan v. St. Vincent’s Hospital (N.Y.Crt.App. 2005)?  How did it impact the plaintiff’s ability to bring a wrongful death claim?

Back 39

The court dismissed the ability to recover damages for the plaintiff. He was denied the right bring a suit against the hospital and was not considered able to sue on the right of a wrongful death claim, because he was not married to his partner. There was a rational basis review, and although the court did not recognize Langan’s claim, it noted that the legislature can fix this problem by redefining marriage in the NY State Constitution.

Front 40

On what constitutional protection did the Court base its ruling in Lawrence v. Texas (2003)?

Back 40

The court ruled that the government is not required under the equal protection clause to formally recognize same sex marriages or any other homosexual relationship. (I thought it was based on the due process clause of the 14th Amendment? The ruling protected “intimate sexual conduct between two consenting adults.”

Front 41

What did the Court hold in Lehr v. Robertson?

Back 41

What did the Court hold in Lehr v. Robertson?

Appellant’s rights under the Due Process clause were not upheld (denied?). Mere biological connection with a child does not allow a Father protection under the Due Process Clause. He must demonstrate a full commitment to the responsibilities of parenthood. “The Supreme Court ruled that Lehr was not denied any rights under the Fourteenth Amendment. He had neither protected his rights as a putative father under New York law, nor had he maintained a substantial relationship with Jessica.”

Front 42

What did the court hold in Boseman v. Jarrell (N.C.Crt.App 2009)?

Back 42

The adoption wasn’t valid, and shouldn’t have been granted (that was what Jarrell claimed, but I believe that the NC Court of Appeals said the adoption was not void). You can’t adopt a child while the child’s biological parent maintains parental rights, except in a step-parent scenario (I think this is why they had the waiver). BecauseNorth Carolina doesn’t recognize same-sex marriages, however, Julia Boseman couldn’t qualify as a legal step-parent. Nevertheless, the court ruled that Melissa’s conduct indicated that she had voluntarily abandoned her rights as the “paramount parent” but she was allowed some rights.
The adoption was not referred to explicitly as a same-sex adoption; only a direct placement adoption with a waiver of the full terms of parental consent and legal obligations. Court held that it was a valid adoption, and that Boseman is a legal parent of the child. *The best interest of the child usually precedes

Front 43

What did the court hold in In re Gilmore (N.H. 2002)?

Back 43

Court reversed trial court’s decision. Father is to pay all reasonable school expenses which are expenses that are directly related to the child college education (tuition, books, room, board, and other directly related fees). He was no longer required to pay for unrelated things such as allowance, medical and dental expenses, clothing, or shoes. In addition, the room and board money will be no greater than the amount for a dorm on campus and should be paid directly to the college or Lindsey (but not to her mother). This was a case of first impression about what constitutes “educational expenses.”

Front 44

What State first enacted a “no-fault” divorce law?  When did it take effect?

Back 44

California – January 1, 1970

Front 45

What legal phrase equates to void “from the beginning” (i.e., of no legal effect)?

Back 45

Void ab initio

Front 46

Which of the largest States are community property States (i.e. California, Texas, New York)?

Back 46

Louisiana, Texas, California, New Mexico, Arizona, Nevada, Washington, Idaho, and Wisconsin

Front 47

Does Texas provide for alimony upon a divorce?

Back 47

Texas does provide for alimony upon a divorce, but it is not automatic, it is given on a case-by-case basis.

Front 48

What did the court hold in Blakely v. Blakely (Wy. 2009)?

Back 48

Court held that it was in the child’s best interest that their father be awarded custody over them. This would separate them from their half brother for an extended period of time but it was in their best interest. Burden of proof for establishing that the court had abused its discretion was on Mother, but she could not meet that. Court also noted that if Father cannot provide access of two boys to their half-siblings, there could be a change in custody later.

Front 49

What did the court hold in Troxel v. Washington (2004)?

Back 49

The State statute of Washington allotting too much visitation to grandparents (or any third party over the parent’s objections) violated the federal constitution and was struck down.

Front 50

What did the court hold in ADA v. SA (Wy. 2006)?

Back 50

There was not enough evidence to support the idea that the father was using money to pay for drugs and alcohol instead of for paying for his child support. The right of a parent to associate with their children is fundamental. Thus, father’s rights to child are not waived and he still has his rights to his child.

Front 51

What facts were at issue in O’Brien v. O’Brien (N.Y. 1985)?  What did the spouse pursue in the divorce action?  How did the Court treat her husband’s medical degree and license – as separate or marital property?  What damages were awarded to the ex-wife?

Back 51

Plaintiff’s wife (defendant), paid for husband’s Medical Expenses, and is seeking a return of money specifically an award of rehabilitative maintenance or reimbursement for direct financial contributions. It was considered marital property. Court held that the plaintiff’s medical license constitutes “marital property” within the meaning of Domestic Relations Laws and that it is subject to equitable distribution. The wife was only awarded a reimbursement for her direct financial contributions but not for rehabilitative maintenance.

Front 52

CHAPTER X: CONTRACTS

What does the Uniform Commercial Code (“UCC”) govern?  The sales of goods?  Real property?

Back 52

Governs sales, commercial paper, bank collection processes, letters of credit, bulk transfers, warehouse receipts, bills of lading, and other documents of title, investment securities, and secured transactions. It only governs tangible personal property. Governs only sales of goods (“movables”)--it does not cover realty, services, or sales of intangibles.

Front 53

What is the difference between a “void” contract and a “voidable” contract?  What is an “unenforceable” contract?

Back 53

Void- A contract that was never a contract in the first place because no legal obligation had been created.

Voidable – Exists when one or more persons can elect to avoid an obligation created by a contract because of the manner in which the contract was brought about.

Unenforceable – When a defense to the enforceability of a contract is present.

Front 54

Will courts generally utilize a subjective or an objective test in determining the intention of the parties to an agreement?

Back 54

The courts generally use an objective test.

Front 55

When can the offeror (the party making the offer) of a contractual proposal revoke an offer (unless consideration was given to hold the offer open)?  What if the offeror promises to hold an offer open for a certain period of time (again, assuming no consideration was given to hold the offer open)?

Back 55

An offerror can terminate an offer by revocation at any time before it is accepted. The offer, even if promised, is still retractable. There MUST BE CONSIDERATION.

Front 56

Is an offer terminated upon the death of either the offeror or the offeree?

Back 56

Yes, it is terminated upon the death of either the offeror or the offeree. However, if the offer was accepted before death, the offeror’s estate is responsible under the contract. (Also, insanity has the same effect on a contract as death)

Front 57

How does a rejection of an offer, or a counteroffer, by the offeree affect the original offer?

Back 57

An offer is terminated by a rejection or a counteroffer. A counteroffer creates a new proposal to be considered. (However, an inquiry is not the same thing as a counteroffer)

Front 58

Generally speaking, how does silence or inaction on the part of an offeree affect an offer?

Back 58

In most situations, silence or inaction on the part of the offeree does not constitute acceptance.

Front 59

What facts were at issue in Cook’s Pest Control, Inc. v. Rebar (Al. 2002)?  What did the court rule regarding the contract sent back to the company from the plaintiff?

Back 59

Pest control company had original contract that stated a customer will seek arbitration instead of court action in a matter of dispute. However, customer amended a renewal application with a new contract amendment stating that they will have the ability to seek court action. This means the counteroffer terminated the original offer. Cook accepted the new terms via an office clerk signature and cashing the check attached. Court upheld that Cooks was bound to the amendment in the renewal and court action was a seekable avenue for the plaintiff. Cook could have either rejected or proposed a counteroffer, but it did neither so it was deemed acceptance.

Front 60

Generally speaking, if there is a dispute concerning the meaning of a contract, will a court construe the document against the party that drafted it, or the party that received it?

Back 60

The court will construe against the party that drafted it. (Because they could have made it more explicit?)

Front 61

With respect to duress, how do courts generally treat the threat of a civil action?  A criminal prosecution?

Back 61

A threat of criminal prosecution is often treated as duress because it gives rise to fear and judgment is clouded by the thought of losing one’s free will.

A civil action is not seen as duress, this is just how the game is played.

Front 62

Can an action for fraud be based on an opinion, or only facts?

Back 62

For Fraud, misstatements must be of a fact, a fact being something that existed in the past or exists at present. The misstated fact must be material- this being a fact that stands to reason that without it, the contract would have never been entered into.

Front 63

How does an action for misrepresentation differ from an action for fraud?

Back 63

Misrepresentation differs from fraud in the fact that it is not an intentional negligence, it is often a mistake in a contract and is not specifically aimed at hurting another party in a contract. For fraud, there needs to be an intent to deceive (not just negligence).

Front 64

True or false: A mistake of fact related to a contract can be sufficient for the voiding of the contract; a mistake of law cannot.

Back 64

True. In addition, the mistake must refer to a past or present material fact, not to a future possibility.

Front 65

What facts were at issue in Carter v. Matthews (Ark. 1986)?  Were monetary damages allowed?  If damages were not allowed, why not?

Back 65

Plaintiff was not aware of severe flooding on property. It was a mutual mistake of fact between the parties. Recission of the contract was awarded. Damages were not awarded, because when recission is based on mutual mistake rather than fraud, the recoveries of the parties are limited to their restitutionary interests. Also, the plaintiff could not prove reliance on the appellee’s misrepresentations.

Front 66

Is a promise to make a gift is enforceable?

Back 66

No, it is not enforceable because there is no consideration.

Front 67

If the terms of a contract are clear and unambiguous, is its interpretation is a matter of law or of fact?

Back 67

A matter of law- a mistake of matter of law (fact?) does NOT entitle a person to relief.

Front 68

Who, if anyone, can void a contract between and adult and a minor?

Back 68

Only the minor may void the contract, because the adult was capable of sound judgment.

Front 69

What did the court hold in Hanks v. Powder Ridge Restaurant Corp. (Ct. 2005)?

Back 69

The waiver was against the public’s best interest. The waiver affects public interest adversely and therefore is unenforceable because it violates public policy. The contract was an adhesion contract leaning too heavily in favor of the offeree. Also, “the law does not favor contract provisions which relieve a person from his own negligence.”

Front 70

What did the court hold in Carolina Pride Carwash, Inc. v. Kendrick (N.C. 2005)?

Back 70

Covenant not to compete was unenforceable as a matter of law, and the trial court erred by entering summary judgment for Caroline pride and failing to enter summary judgment for defendant with respect to Carolina Pride’s breach of contract claim. Defendant was not forced to pay liquidated damages. In basic, the contract not to work for another carwash for the extended period of time was unreasonable and not ethical.

Front 71

What did the court hold in Mulford v. Borg-Warner Acceptance Corp. (N.Y. 1985)?

Back 71

The checks did not present sufficient material fact to show that the plaintiff had not entered (...that the defendant had entered into the lease?) into the lease. It only showed that he had property rights and paid rent on time.  This was a month to month lease. Plaintiff was awarded one month’s rent, because notice of termination by the defendant was given one day late.

Front 72

What is the parol evidence rule and what type of evidence does it exclude?

Back 72

Parol Evidence rule- Evidence of alleged prior oral or written agreements or terms not contained in the written document will be inadmissible if offered to change the terms of the agreement.
It does not apply to incomplete writing, or “partially integrated” agreements.
Other recognized exceptions include when parol evidence is used to prove fraud or the absence of consideration in the formation of a contract.

Front 73

Pursuant to the statute of frauds, what types of contracts must be in writing?  A guaranty?  A contract that is not capable of being performed in one year?  A contract for a conveyance of personal property?

Back 73

A contract that cannot be performed within one year must be in writing.
Conveyance of personal property or real estate must be in writing.
A gauranty is also required to be in writing.
Specifically, agreements: (1) by executor to answer for debt of a decedent, (2) in consideration of marriage, (3) to answer for the debt of another, (4) that cannot be performed within one year, (5) for the sale of an interest in real property, (6) for the sale of goods above a certain dollar amount

Front 74

What did the court rule in Hinkel v. Sataria Distribution & Packaging, Inc. (Ind.Crt.App. 2010)?

Back 74

The Oral argument could not be incorporated into Hinkel’s employment contract because of the parol evidence rule. It applied because the contract was deemed “fully integrated.” The oral argument did not provide material fact on his breach of the contract claim. Summary judgment in favor of Sataria, affirming trial court.

Front 75

What is the difference between an “express” warranty and an “implied” warranty?

Back 75

Express warranties – created by parties to a contract. Exist whenever a seller affirms facts or describes goods, makes a promise about the goods, or displays a sample model.

Implied Warranty – Warranties that are not expressly written but are implied by law, usually pertaining to a manufacturer’s skill. Two kinds: merchantibility and fitness

Front 76

What did the court rule in Macke v. Pizza of Gaithersburg, Inc. (Md.Crt.App. 1970)?

Back 76

Delegation of duty by Virginia to Macke was entirely permissible under the terms of the agreements. This is because of the Restatement Rule that applies to sales of goods. Judgment was reversed as to liability; judgment entered for appellant for costs, on appeal and below; case remanded for a new trial on the question of damages.

Front 77

CHAPTER XI: TORTS

Which of the following is an intentional tort?  Conversion?  Defamation?  Malpractice?

Back 77

Conversion, assault, battery, trespass, malicious prosecution, false imprisonment, defamation, interference with contract relations, and infliction of mental distress are all intentional torts (based on willful misconduct or intentional wrongs. Malpractice is not an intentional tort because it is the nonlegal term for negligence (“unintentional failure to live up to the community’s ideal of reasonable care--not based on moral fault”).

Front 78

What is the most common type of civil trial in State courts?

Back 78

Tort Cases? Table 11.1 on page 392 might be helpful, but I’m not sure

Front 79

What is the legal definition of assault?  Can words standing alone constitute an assault?  If an actor discontinues assaultive conduct, can he avoid civil liability for the conduct already committed?

Back 79

Assault- an intentional tort because as a general proposition, every person should have the right to live his or her life without being placed in reasonable fear of an intentional action.
Assault = targeted person’s anxiety is product of actor’s threatening conduct, or targeted person’s fear is product of actor’s unsuccessful attempt to hit the target with a punch or thrown object.

Mere words alone are not enough to to constitute assault.

Once a tort has been committed, it cannot be reversed.

Front 80

Can there be an assault without battery?  Must a claim of battery necessarily entail actual harmful conduct, or is merely offensive conduct sufficient?

Back 80

Assault or battery can occur without the other.
Battery includes contact that is actually harmful, as well as conduct that is merely offensive.

Front 81

Can a single incidence of battery give rise to both a civil and a criminal matter?

Back 81

Yes, the injured party may bring civil suit for damages and seek a criminal prosecution for the same act.

Front 82

What facts were at issue in Estate of Berthiaume v. Pratt, M.D. (Me. 1976)?  What did the appellate court ultimately order?

Back 82

A doctor performed an operation on plaintiff’s husband and then took pictures of him while he was in the hospital. He lifted his head to take pictures, and later that day, the husband died. Wife sued for invasion of her husband’s right to privacy and an alleged assault of battery. Due to disputed question of fact, which if decided by the fact finder in favor of the plaintiff would have justified a verdict for the plaintiff, it was reversible error to have directed a verdict for the defendant. New trial was ordered. Taking of pictures of the man did violate his right to privacy, and the fact the photos were not published did not mean it wasn’t an invasion of his privacy (Did the court actually say this? I thought it left it for the jury to decide)

Front 83

Can a party be liable for conversion even if she acted innocently?

Back 83

Yes, conversion still occurs if the act was committed honestly and reasonably.

Front 84

What did the court rule in Mickens v. The Pawn Shop (Ia.Crt.App. 2006)?

Back 84

The district court did not err by finding no breach of contract or conversion by the pawn store and affirm. It was reasonable to transfer, there was no law against it, and Colwell had picked up things for Mickens several times in the past.

Front 85

To what areas of real property does the intentional tort of trespass to land apply?  The surface?  The ground below?  Sky above?

Back 85

Torts to property deal with the protection of a person’s surface land, below the land, and the direct air above the land.

Front 86

What facts were at issue in Ivancic v. Olmstead (N.Y.Crt.App. 1985)?  What legal duty was imposed on the defendant regarding the inspection of his tree?  What did the court ultimately rule?

Back 86

A man was working in his driveway and his neighbor’s tree dropped a limb on his head. He sued for damages. He was only awarded 3500 in damages based on the sole theory of negligence. Both parties set aside the verdict and started a new case. Appeals court said the plaintiff had no convincing evidence that the plaintiff knew the condition of the tree, and even if the defendant had inspected the tree, the limb would not have been found upon reasonable inspection. Plaintiff failed to establish a prima facie case of negligence, and overhanging tree branches are not intentional invasion of property. Defendant does have a duty to inspect the tree if it has visible danger.

Front 87

What is the legal definition of malicious prosecution?  Does a plaintiff have to prevail in the underlying case to bring such an action?  Is merely threatening to bring a lawsuit against an individual sufficient to result in liability for malicious prosecution?

Back 87

Malicious prosecution- an intentional tort that provides targeted individuals with civil remedies against persons who have filed groundless complaints against the target that result in the target’s criminal prosecution.

The plaintiff must prove that the defendant  maliciously and without probable cause instituted a criminal or civil complaint against the target which resulted in a prosecution or lawsuit which then resulted in a decision favorable to the target. The target must also establish that he or she suffered legal injury as a result of the groundless charges.

Merely threatening to bring a lawsuit against the target is not enough to result in liability for malicious prosecution.

Front 88

Do public prosecutors face liability with respect to claims for malicious prosecution?  Why, or why not?

Back 88

In a criminal case, the prosecutor is absolutely immune from malicious prosecution suits. If they were not immune, the defendant could bring a suit against them. (Not sure, but couldn’t you resolve the issue by appealing in a criminal case? And the prosecutors actually represent the State so you can’t sue them directly?)

Front 89

What did the court rule in Wesson v. Wal-Mart Stores East, L.P. (Al.Crt.App. 2009)?

Back 89

Wesson failed to establish that Wal-Mart and Jack did not have probable cause to institute criminal proceedings against Wesson for theft of the prescriptions. Court affirmed the summary judgment in Wal-Mart’s and Jack’s favor on the malicious prosecution claim. Also affirm summary judgment in favor of Wal-Mart and Jack on the false-imprisonment claim because they are immune from it; Wesson had existence of probable cause for her detention.

Front 90

What did the court rule in Riddle v. Golden Isles Broadcasting, LLC (Ga.Crt.App. 2008)?

Back 90

The trial court was not authorized to interfere with the jury’s verdict and erred in granting a new trial as to damages under OCGA; Judgment reversed. Golden Isles damages presented did not outweigh those of Riddles. Trial court erred in granting a new trial on the issue of damages. The first jury’s award of $100,000 in general damages for slander per se was not clearly excessive.

Front 91

What did the court rule in Riddle v. Golden Isles Broadcasting, LLC?

Back 91

The original case awarded Travis S Riddle 100,000 dollars in damages due to defamatory statements made in a radio broadcast by Golden Isles Broadcasting, LLC.

Front 92

Is the truth of a statement a complete defense in a suit for defamation?

Back 92

Yes. Generally, the truth of the statement is a complete defense in a suit for defamation because true statements are not considered to be malicious.

Front 93

Can language which is merely annoying be the basis for a defamation action?

Back 93

No, language that is merely annoying cannot be defamatory.

Front 94

What is the difference between libel and slander?

Back 94

Libel- defamation expressed by print, writing, signs, pictures, and in the absence of statutory provisions to the contrary, radio and television broadcasts.

Slander- involves spoken words that have been heard by someone other than the target.

Front 95

Does the tort of infliction of emotional distress allow recovery when a defendant’s actions cause the plaintiff annoyance, disappointment, or hurt feelings?

Back 95

Recovery for emotional distress is not available for mere annoyance, disappointment, or hurt feelings.

Front 96

What is the legal definition of negligence?  Is it based on moral fault?

Back 96

Negligence is the unintentional failure to live up to the community’s ideal of reasonable care; it is not based on moral fault.

Front 97

Generally speaking, if a defendant could not reasonably foresee an injury resulting from his conduct, can there be negligence and liability?

Back 97

No. If the defendant could not reasonably foresee any injury as the result of a certain conduct, there is no negligence and no liability.

Front 98

As a general rule, is there an affirmative duty to aid or protect another individual?

Back 98

As a general rule the law does NOT impose the duty to aid or protect another.

Front 99

What did the court rule in Mississippi Department of Public Health v. Hall (Miss. 2006)?  What duty was imposed on the hospital?  What did the court ultimately rule regarding plaintiff’s claim?

Back 99

The duty of the Texas standard of care was imposed on the hospital; that is that the duty owed to patients may increase depending on the physical or mental condition of the patient. East Mississippi breached the duties of care owed to Hall. Court ruled in favor of Hall on the basis that East Mississippi did not lock doors and supervise areas in accordance with the Texas standard of care. It was foreseeable that a patient in a psychiatric facility would try to escape, as there were bars in the windows of patient rooms.

Front 100

What is a licensee?  An invitee?  What legal duty owed to each by a premise owner?

Back 100

Licensee- one who enters or remains on land by virtue of the possessors implied or express consent is a licensee, for example, door-to-door salespeople or social guests.

*Licensees must ordinarily accept the premises as they find them and look out for their own welfare.

Invitee- A public invitee or business visitor. A public invitee is a member of the public who enters land for the purpose for which the land is held open to the public for example a customer at a store. A business visitor enters land for a purpose directly or indirectly connected with business dealing with the possessor of the land such as plumbers.

*A landowner owes the invitee a duty to exercise ordinary care under the usual principles of negligence liability, and must exercise reasonable care to make the premises safe.

Front 101

What facts were at issue in Schmidt v. Gateway Community Fellowship (N.D. 2010)?  How did the State law at issue differentiate between invitees and licensees?  What did the court hold regarding plaintiff’s claim?

Back 101

Schmidt entered a recreational activity on Gateway Community Fellowships rented parking lot from a mall. She hurt her ankle in a pothole and sued, but summary judgment was first granted to Fellowship because Schmidt did not pay to enter the recreational activity. The question came about if Fellowship and the Mall were protected under the recreational immunity clause.

A landowner according to North Dakota, owes a duty to lawful entrants to exercise reasonable care to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another.
It was also argued that the church and mall had a business stake in attracting people to the area, so they could be classified as business invitees.

The court could not decide if Fellowship was entitled to recreational immunity. The summary judgment was reversed and case remanded for proceedings consistent with the opinion.

Front 102

What facts were at issue in West v. East Tennessee Pioneer Oil Co. (Tenn. 2005)?  Who determines whether a plaintiff owes a duty of care?  How is proximate cause defined; that is, must a defendant be the sole cause of an injury for it to exist?  What did the court ultimately rule regarding plaintiff’s claim?

Back 102

Tarver is intoxicated and walks into a gas station to buy gas. He is visibly intoxicated and is sold gas and even helped to pump it. He then drives in the wrong direction of traffic and hits the plaintiff head on. Upon inspection it is found that he would of run out of gas before he hit the plaintiff if the gas station had not sold him gas. Trial court gave summary judgment to Pioneer Oil, court of Appeals reversed this.

The court determines whether a plaintiff owes a duty of care and is a question of law.

Proximate cause does not require a defendant to be the sole cause of an injury.

Court ruled that Pioneer Oil owed a duty of reasonable care to persons on the roadways when selling gasoline to an intoxicated driver. Trial court erred in granting summary judgment. Court of Appeals reversal of summary judgment is affirmed.
However, court offered no opinion concerning the ultimate resolution of the case.

Front 103

What is contributory negligence?  Comparative negligence?  How do they differ?

Back 103

Contributory negligence- a defense that exists when the injured persons proximately contributed to their injuries by their own negligence. The plaintiff is held to the same standard of care as the defendant: That is, that of a reasonable person under like circumstances. Will usually bar any recovery by the plaintiff. (Very few states have this)

Comparative negligence – a negligent plaintiff may be able to recover a portion of the cost of an injury. In negligence cases, comparative negligence divides the damages between the parties by reducing the plaintiff’s damages in proportion to the extent of that person’s contributory fault.

Front 104

What was the jury’s verdict in Hockema v. J.S. (Ind.Crt.App. 2005)?  What was the State law regarding a negligent plaintiff’s ability to collect damages?  What did the court ultimately rule regarding plaintiff’s claim?

Back 104

The Comparative Fault Act was in regard to a negligent plaintiff’s ability to collect damages. The Jury found Jacob to be 66.75% at fault and Anne was 33.25% at fault. Jacob was barred from recovering any damages from Hockema. The court ruled that they would adopt a modified comparative fault system. The trial court erred by granting additur, and court reversed and remanded the case with instructions that the Jury verdict be reinstated.

Front 105

What is a “pure” form of comparative negligence?

Back 105

A Plaintiff may recover a percentage of his damages even though his fault exceeds that of the defendant.

Front 106

What facts were at issue in Laaperi v. Sears Roebuck & Co. (1st Cir. 1986)?  What theory of liability was submitted to the jury?  Was Sears excused from liability because it did not manufacture the product at issue?  Why, or why not?  What did the court rule regarding the “obviousness” of the danger?  What about the plaintiff’s alleged expertise in electrical matters?

Back 106

The failure to warn theory was submitted to the Jury. Sears was not excused from liability because a manufacturer’s product does not have to be defective to not be held accountable. In this case the smoke detector did not go off and increased the harm to plaintiff’s family. There was found a sufficient connection between the children’s deaths and injury and absence of any warning. Any reasonable person would assume that the danger is obvious if there is an electrical fire, that the detector would not have worked. The obviousness was a question of fact, and that a warning is required because the average consumer would not understand the risks of electrical fires. The fact he was an electrician was immaterial to the duty of the defendant to warn.
“The defendants appealed to the U.S. Court of Appeals for the First Circuit. Based on Massachusetts law, the court affirmed the lower court's judgment as to the actions brought on behalf of the three sons, concluding that it was for a jury to

Front 107

When reviewing the denial of a motion for a directed verdict or a judgment notwithstanding the verdict (“j.n.o.v.”), an appellate court views the evidence in the light most favorable to which party?

Back 107

The Defendant; the one being accused. To the verdict winner (in the above case, the plaintiff--Laaperi)

Front 108

True or false: (i) Strict liability imposes liability on the defendant without requiring proof of a lack of due care; (ii) Strict liability in the products liability field focuses on the product itself, not the lack of due care on the part of a defendant; (iii) Joint and several liability favors defendants, as they are only responsible for the percentage of liability attributable to them; and (iv) Noneconomic damages include lost earning capacity, and past and future medical bills.

Back 108

I) True
.
II) True; strict liability in products focuses on the product itself

III) False; joint and several liability favors plaintiffs; it allows a collection from the deepest pockets.

IV) True. False-wouldn’t those be economic? Noneconomic damages include physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, and injury to reputation. ( pg 427)

Front 109

What are some of the specific goals of “tort reform”?

Back 109

Some specific goals of tort reform consist of: limiting plaintiff’s venue choices; increase the immunities available to physicians, pharmacists and physician assistants; reduce the liability of pharmaceutical manufacturers in product liability cases; cap noneconomic and punitive damages; shorten statute of limitations periods.

Front 110

Generally speaking, do duly enacted statutes enjoy a presumption of constitutionality?

Back 110

Duly enacted statutes do enjoy a presumption of constitutionality.

Front 111

What did the court rule in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt (Ga. 2010)?

Back 111

The Noneconomic damages caps in OCGA violated the right to a jury trial as guaranteed under the Georgia Constitution. The Trial courts decision to declare OCGA unconstitutional was affirmed and damages awarded were affirmed. The statute limited the right of the jury to decide the correct amount of noneconomic damages to be awarded.

Front 112

What percentage of tort plaintiffs are actually awarded punitive damages by juries (in 2005)?

Back 112

Only 3 percent were actually awarded punitive damages by juries in 2005.