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121 Cards in this Set
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- Back
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intentional torts (7)
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Personal Injury
(1) battery (2) assaut (3) false imprisonment (4) IIED Property (5) trespass to land (6) trespass to chattel (need damages) (7) conversion (need damages) |
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reformation of deeds
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- an equity court may rewrite a deed to make it conform to the intention of the parties
- reformation is available if the deed does not express what the parties agreed b/c of: (1) mutual mistake or a scrivener's error; OR (2) unilateral mistake if the non-mistaken party induced the mistake by misrepresentation or other inequitable conduct - no reformation if BFP relied on original language of deed |
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embezzlement
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the fraudulent (intent to defraud) conversion of personal property of another by one in lawful possession of that property
=> Δ misappropriates property after possession |
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larceny
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trespassory taking and carrying away of the personal property of another with the intent to permanently deprive that person of her interest in the property
- all that is necessary is that the property be taken from someone who has a possessory interest superior to that of Δ - intent may also be satisfied if Δ intends to deal w/ property in a manner that involves a substantial risk of damage or loss |
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robbery
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(1) larceny: trespassory taking and carrying away of the personal property of another with the intent to steal;
(2) taking must be accomplished by threat of force, violence, or intimidation; AND (3) taking must be from victim's person or in their presence => b/c larceny is a lesser included offense of robbery, if Δ is guilty of robbery, he can't be guilty of larceny too |
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nuisance
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private nusiance: a substantial and unreasonable interference w/ another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession
- here, "substantial" means offensive, inconvenient, or annoying to an AVERAGE PERSON in the community public nuisance: an act that unreasonably interferes w/ the health, safety, or property rights of the community |
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strict liability defenses
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(1) assumption of risk
(2) adequate warning (3) product misuse - BUT note: Δ is liable for a defective product, even if Π misuses it, as long as that misuse is foreseeable |
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grounds for excluding relevant evidence
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a judge has discretion to exclude relevant evidence if:
(1) probative value outweighed by danger of unfair prejudice; (2) cumulative; (3) waste of time; OR (4) confusion of issues |
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strict products liability
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one who sells a product in a defective condition unreasonably dangerous to the user or consumer is strictly liable for the harm or injury caused
- defective products: (1) design defect; (2) manufacture defect; OR (3) failure to adequately warn as to use - who can be a Δ?: anyone in chain of sale; except for occasional seller - not in biz of selling this type of product - who can be a Π?: (1) buyer of product; (2) user of product; OR (3) foreseeable bystander |
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strict liability: wild animals
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A possessor of a wild animal is subject to strict liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the animal, otherwise to prevent it from doing harm
- wild animals: lions, tigers, bears, elephants, wolves, monkeys, rattlesnakes, alligators, ostriches, tsetse files, killer bees, guard dogs, rats - dangerous propensity: bite, eat, claw, make Π run away - Δ not strictly liable for domesticated animals unless Δ had scienter of animal's dangerous propensity |
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arson
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the malicious burning of the dwelling of another
- burning: requiring some damage to the structure caused by fire - charring is sufficient; blackening is not |
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judicial notice
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A ct may take judicial notice of facts which are capable of accurate and ready determination.
- a judicially noticed fact is conclusive in a civil case - in a criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially noticed facts - the effect of judicial notice in a criminal case is the prosecutor's burden of producing evidence on that point is satisfied. |
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double jeopardy
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Under the 5th Am., a person may not be retried for the same offense once jeopardy has attached.
- jeopardy attaches in a jury trial at the empaneling & swearing of the jury - in bench trials, jeopardy attaches when the first witness is sworn |
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abnormally dangerous activities
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ex: flammable products, blasting, crop dusting
- one who engages in an abnormally dangerous activity is subject to strict liability REGARDLESS of exercising the utmost care to prevent the injury - Δ is SL for engaging in an abnormally dangerous activity only if the dangerous propensity of that activity injures Π |
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unforeseeable or superseding causes
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(1) acts of God
(2) intentional torts of 3d parties (3) intentional crimes of 3d parties - if unforeseeable => Δ not liable (superseding) |
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foreseeable intervening causes
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(1) negligent rescue
(2) subsequent medical malpractice (3) subsequent disease (4) general negligence - if foreseeable => Δ remains liable |
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collateral source rule
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payment made by a collateral source does not decrease a Π's recovery against a negligent Δ
- Π's insurance co. - worker's compensation |
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joint and several liability
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- when there are two or more tortfeasors, each can be responsible for the entire harm
contribution: Δs can allocate damages among themselves indemnity: another person has to cover the entire judgment b/c this tortfeasor is not legally responsible |
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comparative negligence
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- a negligent Π's recovery will be reduced by the percentage of his own negligence
pure comparative negligence (majority) - jury assigns fault to everyone - Π can recover even if Π's negligence exceeds Δ's modified comparative negligence (minority) - recovery only if Π's negligence is less than Δ's |
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battery
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(1) Δ intends to commit an offensive or harmful contact and an offensive or harmful contact results; OR
(2) Δ intends to commit an assault, and an offensive or harmful contact results; OR (3) Δ commits an act, which he knows or should know, creates a substantial certainty that a harmful or offensive contact will occur - defenses: consent, self defense, defense of others, defense of property |
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privacy torts
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(1) appropriation
(2) false light (3) public disclosure of private facts (4) intrusion on Π's affairs or seclusion |
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lien v. title theory of mortgages
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lien theory: in most states, a mortgage is a lien on title and does not sever a joint tenancy. severance occurs only if the mortgage is foreclosed and the property is sold
title theory: execution of a mortgage severs a joint tenancy |
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negligence elements
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(1) duty
(2) breach (3) cause in fact (4) proximate cause (5) damages |
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negligence per se
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(1) statute designed to protect this class of Π
(2) statute designed to prevent this type of injury (3) violation must not be excusable => if excusable, not negligence per se |
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contributory negligence
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- if Π at fault at all, no recovery
- only a defense to negligence - last clear chance: a negligent Π can still recover if he can show Δ had the last clear chance to avoid the injury and failed to do so - minority rule |
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assault
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(1) an act by Δ creating a reasonable apprehension in Π of an imminent battery
(2) intent on part of Δ to bring about apprehension of imminent battery in Π (3) causation |
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strict liability crimes
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(1) statutory rape
(2) selling liquor to minors (3) bigamy (some j/d) |
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malice crimes
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(1) C/L murder
(2) arson |
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extortion
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obtaining property by means of threats to do harm or to expose information
- blackmail |
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general intent crimes
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(1) battery
(2) rape (3) kidnapping (4) false imprisonment |
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burglary
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breaking and entering of the dwelling house of another at night with an intent to commit a larceny or felony therein
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specific intent crimes
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(1) inchoate offenses
- solicitation - attempt - conspiracy (2) 1st degree premeditated murder (3) assault (attempted battery) (4) theft crimes - larceny, robbery - burglary - false pretenses - embezzlement (5) forgery |
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voluntary intoxication
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a defense to a specific intent crime where it negates mens rea
- not a defense to a general intent crime |
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false light
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"False light" exists where one attributes to Π views he does not hold or actions he did not take. The false light must be something objectionable to a reasonable person under the circumstance.
- for liability to attach, there must be publicity |
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entrapment
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available as a defense where Δ is not predisposed to commit the crime prior to contact by the government (police)
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mistake of fact
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a defense where it negates mens rea; must be "honest"
- specific intent: any mistake, reasonable or unreasonable - general intent: only reasonable mistakes - strict liability: mistake of fact is no defense |
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specially manufactured goods exception to SOF
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In order for the specially manufactured goods exception to apply, there must be all three of the following elements:
(1) the goods must be specially manufactured for the buyer (2) the seller must have started work on the goods or else entered into a commitment to purchase them from someone else, AND (3) the goods must not be sellable in the seller's ordinary course of biz |
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IIED
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(1) intent by Δ that Π suffer severe emotional distress, or recklessness
(2) causation (3) severe emotional distress; AND (4) extreme and outrageous conduct => no physical manifestation required |
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public disclosure of private facts
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Public disclosure of private information about Π. The public disclosure must be objectionable to a reasonable person of ordinary sensibilities.
- liability may attach even though actual statement is true |
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statute of frauds
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the following contracts must be in writing in order to be enforceable [MYLEGS]:
Marriage Year (1) Land Executor Guarantee Sale of goods ($500+) |
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intrusion upon Π's affairs or seclusion
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- the act of prying or intruding must be objectionable to a reasonable person
- the thing into which there is an intrusion must be private - photographs taken in public places are not actionable |
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right to jury trial
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if more than 6 mos imprisonment possible
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appropriation
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unauthorized use of Π's picture or name for Δ's commercial advantage
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false pretenses
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obtaining title to personal property of another by an intentional false statement of past or existing fact with intent to defraud another
- ALWAYS shows up with cash or check |
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contracts for goods of $500 or more
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must be in writing under the SOF to be enforceable
Exceptions: (1) specially manufactured goods unsuitable for resale in the seller's regular course of business (2) contracts admitted in court (3) contracts partially accepted (enforceable to the extent of the acceptance) |
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riparian doctrine
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- water belongs to those who own the land bordering the watercourse
- reasonable use theory: all riparians share the right of reasonable use of the water - domestic use >> agricultural and commercial use |
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IIED: 3d party recovery (bystander recovery)
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when Δ causes physical harm to a 3d party and Π suffers emotional distress b/c of her relationship to the injured person:
(1) Π must be present; (2) Π was a close relative to the injured person; (3) Δ knew or should have known of the presence of Π; AND (4) actual damages are required |
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Redline rule (3d party killing)
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Felons | police, victim, bystander
- R-L => right to left - no vicarious liability if someone on right kills someone on the left; every other combo: Δ vicariously liable |
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constructive breaking
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using force or fraud to create the breaking
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attempt
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(1) specific intent to commit target offense; AND
(2) substantial step |
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NIED
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Δ creates a foreseeable risk of physical injury to Π either by:
(1) causing a threat of physical impact that leads to emotional distress, OR (2) directly causing severe emotional distress that causes physical symptoms to Π => physical manifestation required |
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prior appropriation doctrine
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the first party to make beneficial use of water from the water source is protected regardless of whether the party is a riparian owner or not
- others may use whatever water is left in the stream or lake, but they may not diminish the water being used by the prior appropriation - an appropriative right can be lost by abandonment |
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right to counsel
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an indigent has a right to counsel for:
(1) all felonies (2) all mandatory appeals (3) all misdemeanors where jail time is actually imposed |
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larceny by trick
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obtaining possession to personal property of another by a misrepresentation of fact w/ the intent to defraud the other
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best evidence rule
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- to prove the contents of a writing (recording, photograph, X-ray) the original must be produced unless shown to be unavailable
- rule applies where contents are in issue (e.g., where the testimony is reliant on the writing, not on personal knowledge) => if fact to be proven exists independently of the writing, no best evidence rule issue |
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intentional entries
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- Δ is liable for intentional entries onto the land of another
- damage to the land is not required - mistake is no defense |
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unintentional entries
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a person is not liable for trespass for negligent or reckless entries unless he causes damage to the land
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accidental entries
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there is no liability for trespass for accidental entries that are unintentional and non-negligent
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trespass to land
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(1) an act of physical invasion of Π's real property by Δ; (2) intent on Δ's part to bring about the physical invasion; AND (3) causation
- defenses: consent, entry to reclaim Δ's property on Π's land, necessity, entry to abate public or private nuisance |
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necessity (defense in torts)
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a person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it
public: when the act is for the public good private: when the act is solely to benefit any person or any property from destruction or serious injury; Δ must pay for any damage he causes |
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conversion
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intentionally exercising dominion or control over a chattel and seriously interfering with the rights of the owner
- Δ liable for the full value of the chattel at the time of conversion - defenses: consent, necessity |
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trespass to chattel
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(1) an act of Δ that interferes w/ Π's right of possession in the chattel; (2) intent to perform the act bringing about the interference w/ Π's right of possession; (3) causation; and (4) damages
- Δ liable for the damage or diminished value of the chattel - defense: battery defenses |
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false imprisonment
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(1) Δ acts intending to confine the other or a third person w/n boundaries fixed by Δ
- physical barriers, physical force, threats of force, failure to release, invalid use of legal authority - boundaries: no reas. means of escape known to Π (2) Δ's act directly or indirectly results in such a confinement of the other; AND (3) the other is conscious of the confinement or is harmed by it - defenses: battery defenses, lawful arrest, shopkeeper's privilege |
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shopkeeper's privilege
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if a shopkeeper reasonably believes that a theft has occurred, he is privileged to make a detention in a reasonable manner for a reasonable period of time
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duty to control 3d party
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generally no duty to control a 3d party unless Δ had:
(1) control of, or authority over; AND (2) ability to prevent injury - parent/child - employer/employee - doctor/patient - teacher/student |
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duty to render aid
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generally, there is no duty to render aid
exceptions: (1) Δ caused harm (2) close family relationship (3) K relationship (4) begin rescue (5) Good Samaritan statute => subsequent exacerbated injury is ALWAYS foreseeable |
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landowner duties of care to trespassers
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basic trespasser: Δ owes no duty of care
known trespasser: Δ has a duty to warn of concealed artificial condition that Δ knows about that presents risk of death or serious physical injury child trespasser: Δ has a duty to use reasonable care to protect child from injuries from artificial conditions on land |
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landowner duties of care to licensees
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if Π is a licensee (social guest), Δ has a duty to warn about concealed dangerous conditions that Δ knows about
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landowner duties of care to invitees
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if Π is an invitee (for benefit of owner), Δ has a duty to warn about concealed dangerous conditions that Δ knows about and should know about
- Δ has a duty to make reasonable inspections |
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attractive nuisance
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(1) an artificial dangerous condition on the land;
(2) the possessor knows, or should know, of the existence of the dangerous condition; (3) the child, b/c of his youth, age, or maturity fails to appreciate the danger; AND (4) the utility of maintaining the dangerous condition is slight compared to the risk |
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res ipsa loquitur
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(1) the accident doesn't normally occur absent negligence on the part of Δ
(2) the instrumentality causing the accident was w/n Δ's exclusive control |
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inchoate offenses & merger
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solicitation: asking another to commit a crime w/ intent to have crime committed
- merges with conspiracy, attempt, and the completed crime conspiracy: agreement b/w two or more people to commit an unlawful act + overt act in furtherance of the agreement - does not merge with attempt or the completed crime attempt: specific intent + substantial step - merges with the completed crime |
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conspiracy
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agreement b/w two or more people to commit an unlawful act + overt act in furtherance of the agreement
- co-conspirators are liable for conspiracy and all substantive offenses in furtherance of the conspiracy - withdrawal will get Δ off hook for substantive offenses that occur after withdrawal, but Δ still liable for conspiracy - for successful withdrawal: (1) give it up; AND (2) communicate to ALL other participants in time for them to change their plans - Δ may be guilty of conspiracy and substantive offense (no merger) |
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self defense
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(1) Δ must reasonably believe under imminent, unlawful attack; AND (2) Δ may only use reasonable force to defend
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informed consent
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A doctor proposing a course of treatment has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. If an undisclosed risk was serious enough that a REASONABLE person in the patient's position would have withheld consent to the treatment, the doctor has breached her duty.
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defamation
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To make out a case for defamation, Π must show that Δ published a defamatory statement of or concerning Π that damaged his reputation.
If Π is a public figure (or public official) or a matter of public concern is involved, Π must also prove (1) malice AND (2) falsity. |
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relevant evidence may be INADMISSIBLE if the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by PRAGMATIC CONSIDERATIONS:
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[DMC + DWC (beating a dead horse)]
(1) danger of unfair prejudice (2) misleading the jury (3) confusion of issues (4) undue delay (5) waste of time (6) unduly cumulative |
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rescission of a unilateral K
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In a unilateral K case, a rescission promise must be supported by either (1) an offer of new consideration; (2) detrimental reliance; OR (3) offeree's manifestation of an intent to make a gift of the obligation owed her.
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battle of the forms (UCC)
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(1) if offeree (usu. seller) accepts offer and then at the same time makes a material alteration of the terms, there is a K under the original terms.
(2) if acceptance by offeree, w/ a non-material change, then such changes are incorporated into K unless offeror objects w/n a reasonable time. (3) material change: any change that substantially affects economic risks or benefits or changes usu. remedy for breach of K. |
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ways to accept purchase order (offer to buy)
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(1) acceptance by promise to ship goods
(2) prompt shipment of conforming goods (3) prompt shipment of non-conforming goods is a simultaneous acceptance AND breach unless S notifies B goods are nonconforming [accommodation notice - new offer that can be accepted or rejected] |
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liquidated damages
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A liquidated damages clause is enforceable if:
(1) damages are difficult to ascertain at the time of making the K; AND (2) the damages are a reasonable forecast of compensatory damages |
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mutual mistake
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When both parties entering into a K are mistaken about facts relating to the agreement, the K may be voidable by the adversely affected party if:
(1) the mistake concerns a basic assumption on which the K is made; (2) the mistake has a material effect on the agreed-upon exchange; AND (3) the party seeking avoidance did not assume the risk of the mistake. |
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unilateral mistake
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Unilateral mistake as to a material fact is generally not a basis for rescission by the mistaken party unless the nonmistaken party knew or should have known of the mistake.
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firm offer rule (UCC)
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In a sale of goods, if a MERCHANT PROMISES in a SIGNED WRITING to keep an OFFER OPEN, then the offer is irrevocable.
An offer will be firm for a reasonable time, not to exceed 3 mos. |
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merchant's confirmatory memo (UCC)
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One party can use its own signed writing to satisfy SOF against the other party if:
(1) both parties are merchants; (2) the writing claims a prior oral agreement and has a quantity; AND (3) the recipient does not object in writing within 10 days. => effect: Art 2 lets a merchant use its own confirmation to satisfy the SOF against another merchant |
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seller's warranties of quality in a sale of goods (UCC)
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(1) express warranties
(2) implied warranty of merchantability (3) implied warranty of fitness for a particular purpose |
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express warranty (UCC)
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Statements of fact, promises, description of the goods, and the use of a sample or model are express warranties.
Opinions are NOT express warranties [look for general or subjective statements]. Must be a basis of the bargain: if the buyer could have relied on the express warranty, it was a "basis of the bargain." |
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implied warranty of merchantability (UCC)
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Def: the goods are fit for their ORDINARY PURPOSE
Triggering fact: seller is a merchant who DEALS IN GOODS OF THE KIND [who has special knowledge about the particular goods involved in the transaction] |
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implied warranty of fitness for a particular purpose (UCC)
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Def: the goods are fit for buyer's particular purpose
Triggering facts: seller knows that buyer has a special purpose in mind and is relying on seller to select suitable goods. Note: seller does not have to be any kind of merchant at all |
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limitations on warranty liability in a sale of goods (UCC)
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Disclaimers
- a seller can disclaim implied, but NOT express warranties Limitation of buyer's remedies - generally, seller can limit buyer's remedies for breach of ANY warranty (express or implied) if the limitation not unconscionable - exception: limiting buyer's remedies for personal injury in the case of consumer goods is PRESUMED unconscionable |
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Risk of loss (ROL) in a sale of goods (UCC)
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if seller bears ROL: seller must provide new goods to buyer for no additional cost, or be liable for breach of K
if buyer bears ROL: buyer must still pay the K price! |
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ROL in a sale of goods hierarchy (UCC)
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Look for the following things in the order listed here:
(1) agreement - the agreement of the parties controls (2) breach - breaching party bears ROL, even if loss is unrelated to breach (3) delivery by common carrier - ROL shifts to buyer when seller completes its delivery obligations - look for shipment or destination K (4) non-carrier cases (e.g., buyer is to pick up or seller is to deliver the goods) - if seller is a MERCHANT, seller bears ROL until buyer takes possession of the goods - if seller is NOT a merchant, seller bears the risk of loss until it tenders the goods (i.e., makes them available to buyer) |
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delivery by common carrier (UCC)
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ROL shifts to buyer when seller completes its delivery obligations
- SHIPMENT CONTRACT: seller must get the goods to a common carrier, make delivery arrangements, and notify buyer - DESTINATION CONTRACT: seller must get the goods to a specific destination (usu. where the buyer is located) |
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FOB ("free on board") (UCC)
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FOB is followed by the name of a place or city.
If it is WHERE SELLER IS LOCATED, then the contract is a SHIPMENT CONTRACT. If it is any other city, the contract is a DESTINATION CONTRACT. |
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installment sales contracts (UCC)
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Def: requires or authorizes delivery in separate installments (otherwise, the goods have to be delivered in a single delivery)
significance: perfect tender rule does NOT apply, so it's tougher for buyer to reject - right to reject AN INSTALLMENT: only if there's a substantial impairment in the installment that can't be cured - right to reject ENTIRE K: only if a defect in an installment substantially impairs the value of entire K |
so, in an installment K, buyer can't reject goods just because S doesn't make perfect tender--need substantial impairment
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destruction of something necessary for performance
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C/L: destruction provides an excuse for non-performance
UCC - UNIDENTIFIED GOODS: seller is excused only if the damaged/destroyed goods had been "identified to the contract" - RISK OF LOSS: a seller who bore ROL when goods were damaged or destroyed is excused by impracticability, but a buyer is not |
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specific performance for sale of goods (UCC)
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Specific performance is available only if the goods are unique or there are "other proper circumstances" (e.g., an inability to buy substitute goods in the market)
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unpaid seller's right to reclaim goods (UCC)
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General rule: an unpaid seller has NO rights under Art 2 in goods it has delivered to the buyer
Exception: if buyer was insolvent when it received the goods AND seller makes a demand w/n 10 days after buyer received them Exception: seller can reclaim goods at any time if buyer misrepresented its insolvency to seller in writing within 3 months before delivery |
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entrustment of goods (UCC)
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An owner who entrusts her goods to a merchant who deals in goods of the kind has no rights against a BFP of the goods
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right to request assurance in a sale of goods (UCC)
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A party with reasonable grounds for insecurity may request in writing adequate assurance that the other party will perform in accord with the contract.
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sale of goods buyer's expectation damages (UCC)
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cover damages: cover price - K price if buyer covers in GF
market damages: market price - K price if buyer doesn't cover in GF or doesn't cover at all loss in value: value as promised - value delivered if buyer keeps non-conforming goods |
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sale of goods seller's expectation damages (UCC)
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resale damages: K price - resale price if seller resells in GF
market damages: K price - market price if seller does not resell in GF or does not resell at all lost profit: if seller is a lost volume dealer contract price: if seller cannot resell the goods (e.g., no market for the goods) |
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sale of goods damages [available to buyer and seller] (UCC)
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incidental damages: involve the cost of transporting or caring for goods after breach and costs associated w/ arranging a substitute transaction
avoidable damages: an injured party cannot recover damages he could have avoided ("mitigated") with reasonable effort |
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consequential damages
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damages that are special to this plaintiff and were reasonably foreseeable by the breaching party AT THE TIME OF THE K
- Note: not available to a seller under the UCC |
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multiple assignments
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GRATUITOUS ("GIFT") ASSIGNMENTS: the LAST gratuitous assignee in time prevails over earlier gratuitous assignees b/c a later gift assignment revokes an earlier one
ASSIGNMENTS FOR CONSIDERATION: the FIRST assignee for consideration prevails over all subsequent assignees b/c an assignment for consideration is much more durable than a gratuitous assignment - exception: a later assignee for consideration prevails if he does not know of the earlier assignments AND is the first to get payment from or a judgment against the obligor => Note, an assignment for consideration REVOKES an earlier gift assignment |
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slander
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spoken defamation; Π must prove special damages (some pecuniary loss), unless defamation falls w/n slander per se categories:
(1) adversely reflect on one's conduct in a business profession; (2) loathsome disease; (3) guilty of a crime involving moral turpitude; OR (4) a woman is unchaste |
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accomplice confessions
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Where two persons are tried together and one has given a confession implicating the other, the general rule is that the 6th Am. right to confront adverse witnesses prohibits the use of such a statement.
As exceptions to the general rule, the statement may be admitted if: (1) all portions of the state referring to the other can be eliminated; (2) the confessing Δ takes the stand and subjects himself to cross wrt the truth or falsity of what the statement asserts; OR (3) the confession of the nontestifying co-Δ is being used to rebut Δ's claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission. |
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obscenity
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A depiction of sexual conduct that, taken as a whole, by the average person, using contemporary community standards:
(1) appeals to the prurient interest in sex; (2) portrays sex in a patently offensive way; AND (3) using a rational, reasonable person standard, does not have serious literary, artistic, political, or scientific value. |
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felony murder
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Under the felony murder rule, any death caused in the commission of, or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.
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"agency theory" of felony murder (majority)
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Under the "agency theory" of felony murder, the killing must be caused by one of the felons engaged in the underlying felony. If the killing is caused by a non-felon (e.g., bystander, victim, police officer), the felony murder rule general doesn't apply.
- exception: under the "shield exception," if one of the felons takes a person as a hostage or shield who is killed, ALL the participating felons are liable. |
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"proximate cause theory" of felony murder (minority)
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Under the "proximate cause theory" of felony murder, if the death of the victim is a natural and probable consequence of the underlying felony [whether the shooter is a felon or a 3d person (e.g., bystander)], ALL participating felons are liable.
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Rule in Dumpor's Case (majority)
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Under this rule, a lessor's consent to one assignment dispenses w/ the need to obtain the lessor's consent for any future assignments," in the absence of a lease term to the K.
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covenants of title
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A general warranty deed normally contains the following 6 covenants of title:
Present Covenants (do not run w/ the land): (1) covenant of seisin (2) covenant of right to convey (3) covenant against encumbrances Future Covenants (run w/ the land): (4) covenant of quiet enjoyment (5) covenant of warranty (6) covenant of further assurances |
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covenant against encumbrances
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a covenant assuring that there are no encumbrances (e.g., easements, liens, mortgages) against the title
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covenant of warranty
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a covenant wherein the grantor agrees to defend the grantee against claims of title by a third party
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EP: statute "neutral on its face"
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Π bears the inital burden to show that the law has both a discriminatory effect and purpose.
If proven, the burden shifts to the state to show the measure furthers a compelling state interest. |
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taking
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criteria to be considered in evaluating whether a regulation is a taking:
(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered w/ investment-backed expectations; AND (3) the character of the governmental action |
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unintentional trespass
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there is liability for unintentional trespass caused either recklessly or negligently if there are damages to the property.
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absolute privilege to defamation
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There is NO defamation liability for:
(1) statements made by one spouse to another; (2) statements made in judicial proceedings; (3) statements made by executive branch officials; AND (4) statements made by legislatures in hearings or floor debates |
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qualified privilege to defamation
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There are various situations where a speaker is entitled to a qualified privilege.
Look for employers and professors giving recommendations, persons reporting crimes, and credit bureau reports. If Δ has a qualified privilege, Δ is only liable if (1) Δ acted with malice; OR (2) engaged in excessive publication; OR (3) if the statement is unrelated to the policy of the qualified privilege. |
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checks tendered as "payment in full" (UCC)
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If a monetary claim is (1) uncertain or is subject to a bona fide dispute, an accord and satisfaction may be accomplished by a (2) good faith tender and acceptance of a check when that check (or an accompanying document) (3) conspicuously states that the check is tendered in (4) full satisfaction of the debt.
To "undo" an otherwise effective accord and satisfaction under the UCC, the party should tender payment received to satisfy the accord w/n 90 days of payment. |
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