MBE Memorization Chart

Con Law JUDICIAL POWER Standing 1 2 3 3rd Party Standing R 1 2 3 a. b. c. Taxpayer Standing Ripeness R 1 2 R Requirements: Injury in fact, (usually economic) Causation Redressability No 3rd party standing UNLESS: Close relationship between п and injured 3P (doctor/patient) OR 3P unable to assert his own rights An organization may sue on behalf of its members IF: the members would have standing to sue, the interests are germane to the organization's purpose, and the claim does not require individual participation of individual members No generalized grievances - P must not be suing SOLELY as a citizen or as a taxpayer interested in having the gov't follow the law Exception - No taxpayer standing UNLESS the taxpayer is claiming gov't expenditures violate the establishment clause In order for a case to be ripe, there must be a genuine and immediate threat of harm (when you see a request for declaratory judgment, look for ripeness ) The hardship that will be suffered without preenforcement review The fitness of the issues and the record for judicial review If a matter has already been resolved, the case will be dismissed as moot, UNLESS: Class action suits Capable of repetition, but evading review Voluntary cessation (but Δ free to resume practice at any time) Political questions will NOT be decided…these include: The republican form of government clause President's conduct regarding foreign policy Impeachment and removal process Partisan gerrymandering Cases come before the Supreme Court in 2 ways: Writ of Certiorari (Court has discretion whether to hear case) All cases from state courts come this way All cases from US Ct/App come this way The Sup Ct has ORIGINAL and EXCLUSIVE jurisdiction for suits b/t state governments Appeal (Court MUST hear case…includes all cases from 3 judge federal district court) Mootness CA R V Political Questions R 1 2 3 4 Supreme Court 1 Review a. b. c. 2 1 2 3 4 Appeals to Sup Ct from states if: Final Judgment From the highest state court with jurisdiction to hear the case (of a US Ct/App or of a 3 judge district court) Presents a substantial federal question Decision by state court does NOT rest on independent state grounds --> if USSCt reverses state on federal question, will the result change or stay the same The 11th Amendment bars suits against states in federal courts and sovereign immunity bars them in state courts, UNLESS: Waiver (must be explicit…NOT implied) Pursuant to federal laws adopted under Sec. 5 of the 14th Amendment The federal government may sue a state Note: Suits against state officers are allowed if: Sued for injunctive relief Money damages to be paid out of state officer's own pocket…NOT the state treasury Page 1 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Sovereign Immunity11th A 1 2 3 1 2 Congress' Authority to Act - Federal Police Power "MILD" M I L D Taxing / Spending Power Commerce Power C I A 10th Amendment 1 2 Congress Power under Section 5 of the 14th Delegation of Powers R - Hierarchy of Laws 1 2 3 4 Presidential Powers 1 a. b. c. Con Law LEGISLATIVE POWER Must be express or implied Congressional power - there is no general federal police power The Necessary and Proper Clause - Congress can choose any means not prohibited by the C for carrying out its authority-N & P clause must have reason attached for MBE ONLY applies to: MILD Military Indian reservations Lands and territories (Federal) District of Columbia Congress may tax and spend for the general welfare Very broad power - use a rational basis test - can attach strings or conditions on spending Note: "General welfare" is ONLY a correct answer if dealing with Congress' taxing/spending or MILD police powers Congress may regulate: The Channels of interstate commerce The Instrumentalities of and persons or things in interstate commerce Activities having a substantial effect on interstate commerce --> cumulative impact test (i.e. - wheat grown for home use case) - any regulation by the states placing undue burdens on interstate commerce are unCal UNLESS authorized by Congress All powers not reserved to the US are reserved to the states Congress cannot compel state regulatory or legislative action - Congress CAN, however, induce state action by attaching "strings" on grants - Congress may prohibit harmful commercial activity by state governments May not create new rights or expand the scope of rights. May only act to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedying Cal violations Congress CAN give, but CAN'T take Congress can hand off any legislative power to an agency, executive branch or judiciary Legislative and line item vetoes are unCal For Congress to act there must be bicameralism and presentment Congress may NOT delegate any executive power to itself or its officers (i.e. veto power) US Constitution Federal Statute or Treaty (last in time prevails…most recent wins) Congress can override a treaty. President can veto but Congress can override. Executive Agreement (foreign) / Executive Order (domestic) State Law EXECUTIVE POWER Foreign Policy Treaties (must be ratified by Senate) - prevail over conflicting state laws - if in conflict with a federal statute, the one adopted last in time prevails - if a treaty conflicts with the US C it is invalid Executive Agreements (do NOT require Senate approval) - can be used for any purpose - signed by Pres. and foreign head of nation - prevail over conflicting state laws, but NEVER over conflicting federal laws Commander-in-Chief (command American troops in foreign countries) - NEVER unCal - nonjusticiable Domestic Affairs Page 2 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 2 a. b. c. d. e. Impeachment and Removal Preemption 1 2 a. b. c. Con Law Appointment Power - ambassadors, federal judges & officers of US (Congress may appoint inferior positions (heads of departments) Removal Power - may fire any executive branch officer; Congress may limit to where there: - is an officer where independence from the President is desirable AND - cannot prohibit removal, only limit it to where there is good cause Pardon Power - only those accused or convicted of federal crimes…NOT civil (does NOT apply to events which led to an impeachment) Absolute Immunity - from civil suits for $ damages for any action while in office Executive Privilege - applies to papers and conversations, but must yield to other important governmental interests The President, VP, federal judges and officers of the US can be impeached and removed for treason, bribery, or for high crimes and misdemeanors Impeachment does NOT remove a person from office - House has the SOLE power to impeach - Impeachment by the House requires a majority vote - Senate conviction requires a 2/3 vote FEDERALISM Express - Congress declares that federal law is exclusive in an area, then it is Implied - If federal and state law are mutually exclusive (not possible to comply with both simultaneously ), federal law preempts state law State law CAN be stricter (offer more protection ) than federal law If state law impedes the achievement of a federal objective, federal law trumps If Congress evidences a clear intent to preempt state law, federal law trumps Factors: Comprehensiveness of the state law Subject matter traditionally reserved to Congress Impossible to obey both laws Overlap of state and federal law Purposes served by the laws Note: States may NOT tax or regulate federal government activity Any form of legislative punishment of a named group or individual without judicial trial. (Ex: revoking the state insurance license of P is sufficient legislative punishment, provision making it a crime for a Commie to act as an officer or EE of a labor union ) - criminal punishment for a crime that was lawful when done, or an increase in punishment after it was committed Congress has EXCLUSIVE jurisdiction to legislate over DC a. b. c. d. e. Bill of Attainder District of Columbia Dormant Commerce R Clause State or local law are unCal if they discriminate against out-of-stater or place an undue burden on interstate commerce Even if discriminatory, regulation may be upheld if it is furthers an important gov't interest and there is no less discriminatory measure. Unduly burdensome-A regulation is unduly burdensome when the burden on interstate commerce is outweighed by the benefit to the state. Exceptions: a. Market participant exception b. Congressional approval P & I Clause of R No state may fail to afford citizens of another state the privileges and immunities afforded its own citizens Article 4 Hint - Always wrong MBE choice UNLESS it deals with the right to travel P & I Clause of 14th Amendment Ask - does the state law discriminate against out-of-staters? Dormant Commerce 1 YES Clause & P & I Clause Analysis Page 3 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Dormant Commerce Clause & P & I Clause Analysis Con Law If the law burdens interstate commerce, it violates the dormant commerce clause, UNLESS: a. It is necessary to achieve an important government purpose b. Congressional approval c. Market participant exception If the law discriminates against out-of-staters with regard to their ability to earn a living, it violates the P & I clause of Article 4, UNLESS it is necessary to achieve an important government purpose Note: Corporations and aliens CANNOT use the P & I clause - discrimination must be w/ regard to civil liberties or important economic activities NO a. P & I clause does NOT apply b. If the law burdens interstate commerce, it violates the dormant commerce clause (apply a balancing test) States may not use their tax systems to help in state businesses - may only tax State Taxation of activities if there is a substantial nexus to the state and it must be fairly Interstate Commerce apportioned Full Faith and Credit R Courts in one state must give full faith and credit to judgments of courts in another state, so long as: Clause 1 The court that rendered the judgment had jurisdiction 2 The judgment was on the merits 3 The judgment is final ALWAYS wrong as MBE choice, unless attached to another power Necessary & Proper PROTECTION OF INDIVIDUAL LIBERTIES Levels of Scrutiny 1 Strict Scrutiny - necessary to achieve a compelling gov't purpose a. Must be the least restrictive means b. Burden on gov't 2 Intermediate Scrutiny - substantially related to an important gov't purpose a. Must be narrowly tailored…NOT least restrictive b. Burden on gov't 2 Rational Basis - rationally related to a legitimate gov't purpose a. Burden on challenger b. Gov't usually wins Constitution's R Private conduct need NOT comply with the Constitution Exceptions: Protection of 1 By statute, Congress may apply Cal norms to private conduct Individual Liberties a 13th can be used to prohibit race discrimination - private race discrimination does not violate the 13th, but a statute could prohibit it b. The commerce power can be used to apply Cal norms to private conduct substantial economic effect c. Congress CANNOT use section 5 of the 14th to regulate private behavior 2 Public Function - Private entity performing a task traditionally and exclusively done by the gov't (i.e. "company town" or holding an election) 3 Entanglement - the Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity a. Courts cannot enforce racially restrictive covenants b. State action when gov't leases a restaurant that racially discriminates c. State action when provides free books to schools that racially discriminate d. State action when private entity regulates interscholastic sports w/in a state e. NO state action when private school 99% funded by state fires a teacher b/c of her speech f. NO state action when NCAA orders suspension of a coach at a state university Page 4 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 3 Con Law g. NO state action when a private club with liquor license from state racially discriminates Incorporation The Bill of Rights applies ONLY to the federal gov't directly Bill of Rights is applied to state and local gov't through incorporation through the 14th, EXCEPT: 2nd Amendment - right to bear arms 3rd Amendment - right to not have a soldier quartered in a home 5th right to grand jury indictment in criminal cases 7th right to jury trial in civil cases 8th right against excessive fines DUE PROCESS Issue - Has there been a deprivation of life, liberty or property? Def - A deprivation of liberty occurs if there is loss of a significant freedom provided by the Constitution or a statute Notes: Before an adult may be institutionalized, there must be notice and a hearing (unless an emergency) If a parent is going to institutionalize a child, there must only be a screening by a neutral 3rd party Harm to reputation is NOT a deprivation of liberty Prisoners rarely have liberty interests Def - A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled Entitlement - A reasonable expectation to continued receipt of a benefit Examples: Gov't terminates a job at 6 months after promising 1 year of employment…this IS a deprivation of property b/c there was entitlement Job is terminated after 1 year on a year-to-year employment K…NO entitlement Interest affected Risk of error with no more procedures BALANCED AGAINST Administrative cost on gov't of additional procedures Gov't negligence is NOT sufficient for deprivation of due process…must be intentional or reckless…UNLESS an emergency and then the gov't is liable only if its conduct "shocks the conscience" Note: Generally, the government's failure to protect people from privately inflicted harm (i.e. child abuse) does NOT deny due process UNLESS the government created the danger Before welfare benefits terminated - notice and hearing Social security benefit terminated - need only post-termination hearing Student disciplined by public school - notice of charges and opportunity to explain Before child custody terminated - notice and hearing American citizen held by gov't as enemy combatant - must be afforded due process Punitive damages awards require instructions to jury and judicial review Except in exigent circumstances, prejudgment attachment or gov't seizure of assets must be preceded by notice and hearing Note: Due process does NOT require an innocent owner defense to gov't seizure SUSPECT/QUASI-SUSPECT CLASSES SUSPECT - Race - Alienage (sometimes) - Nationality QUASI-SUSPECT - Gender - Legitmacy - Education of illegal immigrant's children Page 5 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 1 2 3 4 5 Procedural Due Process Liberty Interests 1 2 3 4 Property Interests 1 2 Balancing Test for Procedural DP Standard I R A What procedures are 1 2 Required? 3 4 5 6 7 Suspect Classes for R DP and EP clause A analysis N G L E Fundamental Rights protected under the S T DPC & EPC A R V P C A M P E R Substantive Due Process Economic Rights Takings Clause R 1 2 Con Law FUNDAMENTAL RIGHTS Fundamental Rights - Speech - Travel - Association - Religion - Voting '- Privacy Privacy Contraceptives Abortion Marriage Procreation Education of children outside the public school system Right of relatives to live with one another SUBSTANTIVE DUE PROCESS Def - Whether the gov't has an adequate reason for taking away a person's life, liberty or property Only a rational basis test is used for laws affecting economic rights (i.e. minimum wage laws, consumer protection laws, etc…) The gov't may take private property for public use IF it provides just compensation There are 2 types of takings: Possessory Taking - gov't confiscation or physical occupation of property Regulatory Taking - gov't regulation that leaves no reasonable economically viable use of the property (mere decrease in property value is NOT enough) Decreasing economic value balancing test D Dimunition in value O Owner's reasonable expectations S Social goals of the regulation Public Use - gov't must have a reasonable belief that its action will benefit the public Just Compensation - gov't must pay economic value of property in the hands of the owner (gain to the taker is irrelevant…ONLY concerned with loss to the owner) Notes: Gov't conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed A property owner may bring a takings challenge to regulations that existed at the time the property was acquired Temporarily denying an owner use of property is NOT a taking so long as the governments action is reasonable No state shall impair the obligations of contracts (never applies to federal gov't) Applies ONLY to state or local interference with existing contracts State or local interference with private contracts OR with gov't contracts must meet strict scrutiny Right to marry Right to procreate The right to custody of one's children (but state may create an irrebutable presumption that married woman's husband is father) The right to keep the family together The right to control the upbringing of one's children (violates DP for a court to order grandparent visitation over parent objection) The right to purchase and use contraceptives 1 2 3 Contracts Clause R Privacy is a fundamental right protected under SDP (use strict scrutiny unless otherwise noted) 1 2 3 4 5 6 Page 6 8bffa6b5-6615-433c-b199-f672f3b1636f.xls unless otherwise noted) Con Law The right to abortion. Prior to viability states may not prohibit abortions BUT may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. After viability, states may prohibit abortions UNLESS necessary to protect the woman's life or health. Gov't doesn't have to subsidize or provide in public hospitals. Spousal consent/notification laws are un(c). Parental notice and consent laws are okay for an unmarried minor's abortion SO LONG AS it creates an alternative procedure where a minor can get an abortion by going to a judge Right to engage in private consensual homosexual activity - no articulated level of scrutiny Right to refuse medical treatment. A state may require c/c evidence that a person wanted treatment terminated. A state may prevent family members from terminating treatment for another. EQUAL PROTECTION What is the classification? What level of scrutiny should be applied? Does this law meet the level of scrutiny? Applies ONLY to state and local government Applies to federal gov't Strict scrutiny Race classification can (1) exist on the face of the law or, (2) if facially neutral, proving a racial classification requires demonstrating both discriminatory impact AND discriminatory intent Racial classifications benefiting minorities - numerical set-asides require clear proof of past discrimination Educational institutions may use race as a factor in admissions Seniority systems may NOT be disrupted for affirmative action Intermediate scrutiny Gender classification can (1) exist on the face of the law or, (2) if facially neutral, proving a racial classification requires demonstrating both discriminatory impact AND discriminatory intent Gender classifications benefiting women that are based on role stereotypes will NOT be allowed Gender classifications that are designed to remedy past discrimination and differences in opportunity WILL be allowed Generally, strict scrutiny is used (i.e. usually gov't will lose) Only rational basis is used for alienage classifications that concern self-gov't and the democratic process (voting, serving on jury, being a police officer, teacher, or probation officer) Only rational basis is used for Congressional discrimination against aliens (regulating immigration) Intermediate scrutiny is used for discrimination with regard to undocumented alien children's right to an education Intermediate scrutiny Laws that deny a benefit to ALL non-marital children, but grant to ALL marital children are unCal Wealth discrim Age discrim Disability discrim Economic regulations Sexual orientation discrim The right to travel - laws that prevent people from moving into a state or durational residency requirements must meet strict scrutiny. Restrictions on foreign travel need only meet rational basis. 7 8 9 Analysis 1 2 3 14th Amendment DP of 5th A Race and National Origin - Gender Classifications - Alienage Classifications (non- US citizens) Discrimination against non-marital children All other types of discrim are reviewed under rational basis - W A D E S Fundamental rights protected under EP Page 7 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Fundamental rights protected under EP Con Law The right to vote - laws that deny some citizens the right to vote must meet strict scrutiny. One person-one vote must be met for all state and local elections. At large elections are constitutional UNLESS there is proof of a discriminatory purpose. The use of race in drawing election district lines must meet strict scrutiny. THE FIRST AMENDMENT Must meet strict scrutiny Either subject matter restrictions or viewpoint restrictions Need only meet intermediate scrutiny Court orders suppressing speech must meet strict scrutiny. The gov't can require a license for speech ONLY if there is an imp reason for licensing and clear criteria leaving almost no discretion to licensing authority. A vague law does not allow a person to know what speech is prohibited and what is allowed A law is unC overbroad if it regulates substantially more speech than the C allows to be regulated Fighting words are unC vague and overbroad Unfettered discretion may not reside in a gov't licensing official. UNPROTECTED SPEECH OR LESS PROTECTED SPEECH SCOFF @ DC The gov't can regulate communicative conduct if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the gov't purpose Content Based Restrictions Content Neutral Prior restraints - Vagueness Overbreadth Unfettered Disc. Mnemonic Symbolic Speech L Taken as a whole, the material Lacks serious redeeming artistic, literary, political or scientific value A The material must Appeal to the prurient interest P The material must be Patently offensive under the law prohibiting obscenity The gov't may seize the assets of businesses convicted of violating obscenity laws - Advertising for illegal activity, and false and deceptive ads are NOT protected by the Fraudulent First Amendment Commercial Speech - The gov't may prevent professionals from advertising or practicing under a trade name Fighting Words Defamation The gov't MAY prohibit attorney, in-person solicitation of clients for profit The gov't may NOT prohibit accountants from in-person solicitation of clients for profit Other commercial speech can be regulated if intermediate scrutiny is met Gov't regulation of commercial speech must be narrowly tailored, but does NOT need to be the least restrictive alternative Words whose very utterance inflicts injury or tends to incite an immediate breach of the peace" If the P is a public official or running for public office, the P must prove falsity of the stmt and actual malice If the P is a "public figure" the P must prove falsity of the stmt and actual malice If the P is a private figure and the matter is of public concern - the P must prove falsity and negligence by the D. The P may recover presumed or punitive damages only by showing actual malice If the P is a "private figure" and the matter is NOT of "public concern" - the P can recover presumed or punitive damages WITHOUT showing actual malice The gov't may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality PLACES AVAILABLE FOR SPEECH Gov't properties that the gov't is C required to make available for speech Regulations must be subject matter and viewpoint neutral, OR, if not, strict scrutiny is applied Page 8 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Child Porn Obscenity & Sexually Oriented Speech "LAP" Clear and Present Danger Public forums - - Public forums Con Law Regulations must be a time, place, or manner regulation that serves an important gov't purpose and leaves open adequate alternative channels of communication Regulations need NOT use the least restrictive alternative Gov't properties that the gov't could close to speech, but chooses to open to speech Must follow rules for public forums Gov't properties that the gov't constitutionally CAN and DOES close to speech. The gov't can regulate speech so long as the regulation is rzbl and VP neutral FREEDOM OF ASSOCIATION Laws that prohibit or punish group membership must meet strict scrutiny Laws that require disclosure of group membership, where it would chill association, must meet strict scrutiny Laws that prohibit a group from discriminating are C unless they interfere with intimate association (small dinner party) or expressive activity (Nazi party can exclude Jews ) Actively affiliated with the group Specifically intending of furthering its illegal activities, and Knowing of it illegal purpose FREEDOM OF RELIGION Cannot be used to challenge a neutral law of general applicability The gov't may NOT deny benefits to individuals who quit their jobs for religious reasons There must be a Secular purpose for the law The Effect must be neither to advance nor inhibit religion There must not be eXcessive entanglement with religion The gov't cannot discriminate against religious speech unless strict scrutiny is met Gov't sponsored religious activity in public schools is unC. BUT religious student and community groups must have the same access to school facilities as non-religious groups The gov't MAY give assistance to parochial schools so long as it is not used for religious instruction. The gov't may provide parent parents vouchers which they use in parochial schools FREEDOM OF THE PRESS Generally, the press has no greater freedom than the average person Taxes which affect only the press or which are based solely on the content of the publication are UnC absent a compelling interest. - Limited Public Forums Non Public Forums - Freedom of Association - Punishment for a person's group membership FoR - The Free Exercise Clause - A S K FoR - The S E Establishment X Clause Freedom of Religion Rules Freedom of the Press R Page 9 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Contracts Analysis 1 2 3 4 5 6 7 AREA OF LAW Applicable Law Formation Terms Performance Remedies Excuse Remedies 3d Party Problems Sale of goods - moveable, personal property (price is irrelevant, don't have to be merchants) --> CONTRACT CREATION Express - created by the parties' words (oral or written) Implied - created by the parties' conduct Elements: п has conferred a benefit on ∆, п reasonably expected to be paid, and ∆ will be unjustly enriched if п is not compensated Measure of Recovery - Reasonable value of benefit conferred…NOT the K price The parties swap promises A bilateral contract can be accepted in any reasonable manner Note: All Ks are bilateral unless the offer says it can be accepted only by performance The offer can be accepted only by performance An agmt that an existing claim shall be disregarded in the future by the rendition of a substituted performance. Note: Once the agreement is carried out - there is accord and satisfaction. Usually deals with a liquidated and undisputed situation OFFER i. An offer is 1) a communication to an identified offeree, 2) which sets forth definite and certain terms (QTIPS) and 3) manifests a present intent to enter into a binding contract. If an advertisement is to qualify as an offer, it must include a quantity term and who may accept the offer Advertisements are usually NOT offers If an advertisement is to qualify as an offer, it must include a quantity term and who may accept the offer Supervening illegality Revocation by Offeror Rejection by Offeree Death of any party before Acceptance An offer lapses after a reasonable time Direct - statement of offeror to offeree and that is inconsistent with the offer Indirect - offeror conduct inconsistent with offer and offeree is aware of that conduct Revocation of an offer only effective if it is received before acceptance Option K - consideration must be paid to keep offer open Detrimental reliance - must be reasonable and foreseeable Part Performance under a Unilateral K - mere preparation not enough Firm offer under Article 2 - there must be a signed, written promise to keep an offer open by a merchant (may be kept open for up to 3 months) Counter Offer - operates as a rejection, but bargaining does NOT (a question is considered bargaining…"will you take $100?") Conditional Acceptance - operates as a rejection and terminates an offer Acceptance Containing Additional or Different Terms: Common Law - rejection (Mirror Image Rule) Article 2 - additional terms do NOT prevent agreement as long as price and quantity are unchanged Page 10 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Art. 2 Applies Creation of a Contract Quasi-K 1 2 1 2 3 Bilateral K Unilateral K Bilateral Executory K Offers Advertisements R Termination of an Offer 1 2 3 4 1 2 Lapse of Time Revocation 4 Situations where 1 an offer may NOT be 2 3 Revoked 4 Rejection 1 2 Contracts Article 2 Rejection 1 2 3 An offeree's additional terms are included ONLY if: Both parties are merchants The term is NOT a material change, and The offeror does NOT object within a reasonable time Note: An offeree's terms are almost never included…a term is material if it substantially effects the economics or remedies under the K An offer is terminated if one of the parties to the K dies before acceptance Note: Knowledge of the party's death is irrelevant Exceptions: Option K Part performance under a unilateral K ACCEPTANCE Bilateral K - start of performance IS acceptance Unilateral K - start of performance is NOT acceptance (must be full performance to constitute acceptance) Bilateral K - a return promise IS acceptance Unilateral K - a return promise is NOT acceptance Note: Article 2 is extremely flexible…generally an offeree can accept in any reasonable manner, promise to ship is acceptance If Buyer orders X and Seller ships Y, there is a simultaneous acceptance and breach Accommodation Exception - If Buyer orders X and Seller ships Y, but Seller explains why the shipment is nonconforming, there is a counter offer and NO breach Acceptance is effective when mailed It does not matter if acceptance letter never arrives Exceptions: If the offer provides otherwise (offeror can override the mailbox rule) Irrevocable Offers Acceptance, then Rejection - whichever arrives first is effective Rejection, then Acceptance - whichever arrives first is effective DEFENSES TO CONTRACT FORMATION Lack of Capacity to K Ambiguity of Term Mistake of Fact Lack of Consideration Applies to: Minors (under 18) Intoxicated persons Mentally Incompetent persons Note: Person must lack capacity at the time of agreement An incapacitated person is liable for necessaries, but only on a quasi-K basis An incapacitated ∆ has the right to disaffirm (avoid) the K A п may enforce a K with an incapacitated ∆ if: ∆ lacks capacity at the time of agreement ∆ later gains the capacity to K, and ∆ impliedly reaffirms the K without complaint Occurs when the parties attach different meaning to a term in the K Result - there is NO contract Exception: One party has reason to know of such ambiguity Result under exception: Innocent party's meaning prevails Mutual Mistake - Both parties are mistaken as to a material fact Result - Buyer NOT bound Note: mistake as to market value is NOT considered material Page 11 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Death of a Party 1 2 Start of Performance as Acceptance Promise as Acceptance Sending the Wrong R Goods as Acceptance Mailbox Rule R 1 2 3 4 Defenses to Formation 1 2 3 4 Lack of Capacity to 1 K 2 3 1 2 3 Ambiguity of Term Mistake of Fact Mistake of Fact Contracts Unilateral Mistake - one party's mistake is NOT a fatal flaw in the agreement process UNLESS the other party knows of the mistake NOT consideration: Past consideration Partial payment of a due and undisputed debt IS consideration: Forbearance Promissory estoppel Common Law - must have additional consideration to modify (Pre-Existing Duty) Article 2 - do NOT need consideration to modify…must have good faith Statute of frauds applies and, therefore, a writing is required for: One year - Service K incapable of being performed < 1 year from date of agreement Real estate transfer Goods sale of more than $500 Administrator Surety-(unless obligation undertaken is for benefit of suretor Marriage Contracts other than the sale of goods must contain: All material terms Signed by the party to be charged Contract for the sale of goods must contain: Quantity term Signed by the party to be charged The SOFT is satisfied without a writing where there is: Full performance of a service K Part performance for the transfer of interest in real property (part performance means (1) moving onto the property with consent, and (2) making permanent improvements thereon) Sales of goods where: Part performance for goods delivered by seller or paid for by buyer Custom made goods (once work has begun) Judicial admissions Merchant's confirmatory memo of prior oral agreement A party may use a memo they have signed to satisfy the SOFT against the other party if: Both parties are merchants, The writing claims there was a prior oral agreement, and Recipient does NOT object in writing within 10 days Reliance has NO effect on a SOFT defense Exception: the other party orally agreed to reduce the agreement's terms to writing Hierarchy: Course of Performance - what the parties have done under this contract Course of Dealing - what the parties have done under their earlier contracts Usage of Trade - what others in the trade do under similar circumstances Apply to conditions that arise AFTER the K was formed If the condition is already in existence at the time of formation, then defenses are assumption of the risk and mistake Lack of Consideration 1 2 1 2 Modification and Consideration Statute of Frauds "ORGASM" O R G A S M 1 2 1 2 Satisfying the Statute of Frauds with a Writing Satisfying the Statute of Frauds without a Writing 1 2 3 a b c d Merchant's Confirmatory Memo 1 2 3 Statute of Frauds & R Estoppel Conduct of the 1 Parties 2 3 Impossibility / Impracticability Parol Evidence Rule TERMS OF THE CONTRACT - Keeps out evidence of what the parties said and did BEFORE they reduced the terms of the agmt to writing - PER problem requires a writing - Exceptions: To correct a clerical error Page 12 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 1 Contracts 2 3 4 To establish a defense to the enforceability of an agreement To explain or interpret the written contract To supplement a partially-integrated writing YOU CAN CHANGE AN AGMT AFTER IT HAS BEEN REDUCED TO WRITING Express Warranties Implied Warranty of Merchantability Implied Warranty of Fitness for a particular purpose Fact, Promise or description - NOT opinion Use of a sample or model gives rise to an express warranty Def - goods are fit for their ordinary purpose AND merchant must deal in goods of the kind (REGULARLY sell out of inventory) Def - goods are fit for the buyer's particular purpose (look for why the buyer wants the goods Buyer has a special purpose Buyer is relying on seller to select suitable goods Seller knows it Express warranties cannot be disclaimed Implied warranties can be disclaimed - "as is" or "with all faults" disclaims all warranties, To disclaim merchantability, it must say "merchantability" and if in writing must be conspicuous, and To disclaim fitness, must be in writing and conspicuous Limits recovery for breach, not warranties; Can limit even breaches of express warranties Test - Unconscionability - with consumer goods limiting remedies for personal injury it is prima facie unconscionable Seller's Warranties 1 of Quality in a Sale 2 of Goods (Art. 2) 3 Express Warranties Implied Warranty of merchantability Implied Warranty of Fitness for a Particular Purpose 1 2 3 a Disclaiming b Warranties in a Sale of Goods (Art. 2) c d Limiting Remedies in a Sale of Goods (Art. 2) Privity of K and warranty liability a Seller's Delivery Obligations in a Sale of Goods using a b Common Carrier Who bears Risk of A B Loss in Sale of Goods K - Hierarchy C "ABCD" What loss is borne Shipment K - Seller must get the goods to the common carrier; make rznble delivery arrangements AND notify the buyer (completes delivery) (FOB city where seller is) GET RULE Agreement of the parties Breaching party is liable, even if loss is unrelated Common carrier Delivery - risk shifts to the buyer when the seller has completed its delivery obligations If seller - provide new goods at no additional cost or BoK damages If buyer - pay full K price a Ask - is the seller a merchant Who bears ROLL b Yes - risk shifts when the buyer takes possession of goods when there is not a c No - risk shifts when seller tenders (makes available) the goods common carrier Time is of the Such clauses will be given effect IF: Essence Clauses 1 Not boilerplate in the K, 2 There is a valid reason for inclusion, and 3 One party is not materially benefited while the other royally hosed PERFORMANCE a Perfect tender rule - seller must deliver perfect goods in the right place at the right time or the buyer may reject the non-conforming goods b Cure - seller has an option to cure IF the time for performance has not expired or the buyer has accepted non-conforming goods in the past a Def - K language that requires or authorizes seller to deliver in separate installments Performance of Ks for Sale of Goods Installment Sales Ks and Performance Page 13 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Installment Sales Ks and Performance Contracts b Perfect tender rule does not apply - buyer has a right to reject an installment when there is a substantial impairment that can't be cured. Buyer has the right to reject the entire K if the installment substantially impairs the value of the whole K Acceptance of Goods (Art. 2) Revoking acceptance of Goods (Art. 2) Paying Ks under Art. 2 Merchant buyer's duties as to rightfully rejected goods a Merely paying is not enough, must have a rznble chance to inspect the goods b Implied acceptance occurs when I have the goods in my possession with an opportunity to inspect and I make no complaint Once you accept goods it is too late to reject them, but you can still get damages a Revocation cannot occur post-acceptance, UNLESS… b Exception - ONLY if the non-conformity substantially impairs the value AND it was difficult to discover Checks are fine, but the seller can demand cash - the buyer then has a rznble amt of time to get the cash After there has been a rightful rejection of goods, the B is under a duty to (a) follow rzbl instructions received from the S with respect to the goods and in the absence of such instructions, (b) make rzbl efforts to sell them for the seller's account. When the B sells the goods - he is entitled to reimbursement out of the proceeds for rzbl expenses of caring for and selling them - not to exceed 10% of gross proceeds a Substantial performance - don't need perfection b Only a material breach excuses performance, but you can still sue for BoK Def - pmt on a per unit basis - use substantial performance on a case by case basis get K price on the partial performance, but liable for breach Performance of Common Law Ks Divisible Ks Common Law EXCUSES FOR NON-PERFORMANCE BASED ON LATER EVENTS a UCC - need perfect tender - if not can reject all, some or accept all Excuses Based on Other party's breach b Common law - substantial performance required - must have less for this excuse Excuse based on a Def - repudiate before performance is due - excuses your performance - You can retract an anticipatory repudiation as long as there has been NO reliance by Other party's the other party Anticipatory - Can only sue on an anticipatory repudiation if there is material prejudice Repudiation - Expression of mere doubt cannot support an anticipatory breach Excuse Based on 1 Modification - takes effect immediately and discharges existing obligations 2 Accord and Satisfaction - has no long term effect, wipes out the original obligation Later Agmt ONLY when it is satisfied. Can sue either on the accord or on the original debt 3 Mutual Rescission Agmt - Each party must have some performance remaining or there is no consideration. 4 Novation - substitute a new party for an existing on - ALL parties must agree or it is a mere delegation of duties Excuse Based on 1 Destruction of something necessary for the performance. Common Law - makes performance impossible. Art 2 - same but the destroyed goods MUST be the subject Unforeseen Event matter of the K (particularly identified) or if the buyer bore the risk of loss there is no making Performance need for excuse of performance Impossible (seller) 2 Death or incapacity of a person ESSENTIAL for performance (anyone can pay money) 3 Excuse Based on Frustration of Purpose (buyer) Excuse Based on Failure of an Express Condition 1 2 Government regulation or order Buyer had a primary purpose, but something happens (gov't regulation) Def - limits obligations by K language ("if", "so long as", "provided", "on condition that", "unless", "when"). Must have STRICT compliance Satisfaction Clauses - Means rznble satisfaction (OBJECTIVE std), but if it is art or matters of personal taste then use a Subjective std Condition precedent/concurrent/subsequent Page 14 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Failure of an Express Condition Contracts ** When the parties have an express condition but do not include it in the writing of the K - the PER does not apply and evidence of the condition (or non-occurrence of the condition) IS admissible to show the condition did not occur - to show that there is no agmt at all. Hindrance - If the party protected by the condition fails to cooperate the condition is excused Estoppel - Later stmt by protected party AND Reliance Performance is excused by illness of the party to perform the personal service…UNLESS the K otherwise provides REMEDIES FOR BREACH OF CONTRACT Specific Performance Right to Request Adequate Assurances of Future Performance Unpaid Seller's Right of Reclamation Entrustment Def - compelling a party to do what he agreed to do "Cha Cha Is My Favorite Dance" -Certain terms -Conditions excused -Irreparable injury -Mutuality -Feasibility of enforcement -Defenses Parties are rarely entitled to specific performance Only available when money damages are inadequate Always available in real estate deals (property is unique) Always available if goods are unique (art, antiques, custom-made goods) Does NOT apply to service contracts (indentured servitude)…but courts can issue injunction to keep employee from working for a competitor A party may request adequate assurances from the other party if they have reasonable insecurity as to whether the other party will perform under the k Request must be in writing Cannot use this remedy to rewrite a k or to demand a particular kind of assurance An unpaid seller has no rights in goods it has delivered Exception: Seller has the right to reclaim if Buyer: Was insolvent when it received the goods, and Seller demands return of the goods within 10 days of buyer receiving the goods An owner who entrusts her property to another has no right to reclaim her belongings if the other sells her property to a bona fide purchaser Note: Make sure the other is in the business of selling those types of goods (if not, there is probably NOT a bona fide purchaser) Liquidated Damages Expectation Damages Incidental Damages Consequential Damages Mitigation Punitive Damages are NOT available Permissible if damages were: Difficult to estimate, and a reasonable forecast of probable damages Fixed sums are generally invalid Liquidated damages are common in the construction industry Designed to put the п in as good a position as full performance Lost Volume Seller can recover lost profit if the breach concerned a good that was part of the seller's regular inventory Page 15 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Excusing Conditions a b Personal Services K Non-Monetary Remedies 1 2 3 4 Specific Performance C C I M F D Adequate Assurances Right of Reclamation R 1 2 R Entrustment (Article 2) Monetary Remedies 1 2 3 4 5 6 Liquidated Damages 1 2 Expectation Damages Contracts Incidental Damages Consequential Damages Mitigation 1 2 3 Def - costs reasonably incurred in arranging a replacement deal (advertising, phone calls, etc…) Def - special damages that were reasonably foreseeable at the time of contract A party may NOT recover damages they could have avoided with rzbl effort When dealing with a terminated employee: Employer has burden of proof to show employee could have mitigated damages Other employment must be the same type of work in the same city Employee does NOT have to take new job THIRD PARTY PROBLEMS 3PB - a person who did not make a contract, but has rights under it because the contract was intended to benefit him Promisor - Party with duty to perform in benefit of 3P Promisee - The party who make the contract with the promisor to perform for 3P. Intended Beneficiary - if the 3P is named in the contract, she is a intended beneficiary Incidental beneficiary - if a 3P is NOT named in the contract, she is an incidental beneficiary Creditor Beneficiary - if a 3P is a creditor of the promisee, she is a creditor beneficiary Donee Beneficiary - if a 3P is NOT a creditor of the promisee, she is a donee beneficiary A promisor and promisee may NOT rescind or modify a K after the 3rd parties rights have vested Vesting occurs when: 3rd party required to or asked to consent to the K and she does so, 3rd party learns of the K and detrimentally relies on it, 3rd party files a lawsuit to enforce the K Intended beneficiary can sue the breaching promisor (no privity required) A promisor, however, can raise any defense he may have against the promisee when sued by the TPB Intended beneficiary can sue the promisor only if he is a creditor beneficiary of the promisor Delegating Party - person who delegates the duty to perform Delegate - person to whom the duty is delegated Obligee - person to whom performance is owed Contractual duties may be delegated WITHOUT the obligee's consent Exceptions: The contract prohibits delegation (contract language controls) The contract requires (1) special skill, or (2) a person with special skills There are NO requirements for effective delegation (i.e. no consideration required) 3rd Party Beneficiary 1 Law (Vocabulary) 2 3 4 5 6 7 Rescission or Modification of K R 1 2 3 Rights of 3rd Party Beneficiary Delegation of Duties 1 2 (Vocabulary) 3 Delegation of Duties R 1 2 Requirements for Effective Delegation Consequences of Delegation 1 2 1 Assignment of Rights (Vocabulary) 2 3 Requirements for 1 2 Making an 3 Assignment 1 Limitations on Assignment Delegating party remains liable Delegate liable to obligee ONLY if delegate received consideration from delegating party Assignor - person who transfers rights under a K Assignee - person to whom the rights are transferred Obligor - person who owes the performance Consideration is NOT required A writing is required ONLY if the amount assigned is > $5000 Must use words of present assignment (not "I will" or "I promise to" ) Common Law - the assignment cannot substantially change the duties of the obligor Page 16 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Limitations on Assignment 2 3 Contracts Requirements Contract - assignable as long as the assignee's requirements are in line with the assignor's Contract clauses - rights may NOT be assigned if the clause invalidates an assignment (i.e. "all assignment hereunder are void")…rights CAN be assigned if the clause merely prohibits assignment (i.e. "rights under this contract are not assignable") Assignee can sue the obligor Obligor has the same defenses against assignee as it would against assignor Note: Obligor payment to assignor is effective unless obligor knows of the assignment The last gratuitous assignee in time wins First assignee for consideration wins Exception: Later assignee for consideration takes precedence over earlier assignees if: He does not know of the prior assignments, and Is the first to obtain payment or a judgment An express promise to pay all or part of an indebtedness of the POR, discharged in a BK proceeding begun before the promise is made, is binding EVEN WITHOUT CONSIDERATION Rights of an Assignee 1 2 Multiple Gratuitous R Assignments Multiple R Assignments for Consideration 1 2 Bankruptcy Page 17 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Contracts Page 18 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Contracts Page 19 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Contracts Page 20 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Contracts Page 21 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Contracts Page 22 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Contracts Page 23 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Contracts Page 24 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Criminal Law Larceny 1 2 3 4 5 6 a b Larceny: Intent to permanently deprive Larceny Exception PROPERTY CRIMES Taking (exercise of actual control) Asportation (some movement) Personal property of another From the possession of another by trespass - without permission OR with permission obtain by deception With specific intent to permanently deprive Asportation only requires SOME movement and a taking does not require the removal from the premises, but there needs to be control Only have to take the property from one with a greater right to possession Must @ the time of taking, INTEND to permanently keep the property OR do something creating a high risk that the owner will never get the property back, Intention is KEY. When act and intent is required, the Δ must have the required intent when he does the act constituting the crime, except in some larceny cases where there is a "Continuing Trespass" - must have wrongfully taken the thing in the first place (w/o intent to deprive) then form the intent Have possession of property under trust arrangement Conversion of that property (use it contrary to the terms of the trust ) specific intent to defraud Intent to return or replace converted property does NOT show the lack of intent required for embezzlement Custody of the property = larceny. An employee usually only has custody of an employer's property With possession can commit embezzlement, but not larceny - possession requires extensive and discretionary control Obtaining title to property from another By means of a misrepresentation of past OR present fact With specific intent to defraud Unkept promises or misrepresentations of future fact are NOT sufficient Your state of mind can be a misrepresented present fact Failure to correct a misunderstanding is sufficient if Δ created the misunderstanding Receiving (taking possession) Of property acquired by larceny or other property crime - KEY: property must actually be STOLEN Knowing that the property is stolen With the intent to permanently deprive the owner Δ- Unlawfully exercises control over the property of another without effective permission and with the intent to deprive the other of that property Requires intent to permanently deprive - and covers all crimes above Larceny in which property is taken either by: Force - force to obtain property or prevent victim from immediately regaining it OR Threats (intimidate) - must be of immediate physical harm; put the victim in fear of harm; AND must cause apprehension in a rznble person When Δ lifts item from P's pocket OR slips item from P's hand without resistance One for EACH person, but not for each item Larceny: taking and asporting Embezzlement 1 2 3 a b c Embezzlement: rules False Pretenses 1 2 3 a b c 1 2 3 4 False Pretenses: Rules Receiving Stolen Property Theft Robbery 1 2 Robbery: No force Number of Robberies Extortion Burglary 1 2 3 4 Obtaining property by means of other threats, such as: a To do something other than physical harm OR b Do physical harm, but not imminent CRIMES AGAINST THE HABITATION Entry - any part of the body or instrument if the instrument is to be used to commit the crime inside By breaking Of the dwelling (actually used as a sleeping place) of someone else During the nighttime Page 25 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Criminal Law 5 Burglary: Rules a b c d e With the specific intent to commit a felony inside the structure Intent and entry must be at the same time Breaking only requires SOME force No need to carry out the intent Can be committed by entering a part of a dwelling, once inside No need to carry out the intent May: expand places covered; eliminate the need for breaking; eliminate the requirement that entry be in nighttime; expand intend Prosecution must prove: Δ entered with intent to commit certain acts AND Those acts if committed by Δ would be a felony Mistaken belief that one's conduct is a felony is NOT the requisite intent Malicious - can be an awareness of high risk Burning Of the dwelling Of another Must have some damage (charring sufficient) Must be by fire - the flame, not smoke or heat To a part of the structure itself CRIMINAL HOMICIDE Did Δ cause the death of the victim? Did Δ act with malice aforethought? (if yes - murder unless 3) If yes - was there adequate provocation? (voluntary manslaughter) If no - did Δ either (a) act with criminal negligence or (b) cause death while committing a misdemeanor (involuntary manslaughter)? Factual causation - "but for" Δ's acts, the victim would not have died AS and WHEN he did Year and one day rule - victim must die w/in 1 year and 1 day from the infliction of the injury Proximate cause Seen when there is intent to cause the death, but it occurs in an unexpected way PC exists if the victim's death naturally results from the Δ's actions, even if this occurs in an unexpected manner, unless the events are extremely unusual No PC if a factor is interjected into the chain of causation that is: Independent of the Δ's actions Unforeseeable AND The SOLE immediate cause of the victim's death Speeding up death = causing it An intervening event cannot break the chain of PC if it only becomes a contributing cause of death Def - Killing with malice aforethought - which requires: Intent to kill OR Intent to cause serious bodily injury OR Awareness of extremely high risk that death will result OR Intent to commit a felony Accidental deaths caused during a felony are murder IF the death was objectively foreseeable OR the felony was dangerous as committed Co-felons are guilty of felony murder if the death was foreseeable to them Felony murder cannot be based on felony assault or battery causing death of victim (merges into death of victim) Many courts don't apply felony murder if the fatal shot was not fired by one of the felons Burglary: Modern Statutes Burglary: Intent 1 2 Arson 1 2 3 4 a b c 1 2 3 4 1 2 3 Proximate Cause Arson: Burning Analysis Causation with Homicides Superseding Cause 1 2 3 Proximate Cause: Rules Murder 1 2 3 4 R Felony Murder Felony Murder: Merger Rule Felony Murder: Bystanders a Degrees of Murder b Courts are most reluctant to apply felony murder when the person killed is one of the felons Most killings with malice aforethought are 2nd degree murders Page 26 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Degrees of Murder Criminal Law Some STATUTES label as 1st degree: certain felony murders and premeditated killings Some conscious deliberation over whether or not to kill - a provoking incident usually shows absence of premeditation Intentional killing that would otherwise be murder is reduced to voluntary manslaughter if 4 things are shown: Objectively rznble provocation (mere words are insufficient) Δ provoked Δ acted on that before an objectively sufficient cooling period elapsed AND Δ had not cooled off Killed in the course of committing a misdemeanor OR Killed with criminal negligence Δ had a legal duty to act - arises from: criminal law; tort law; K law; or any other body of law Δ was aware of the facts giving rise to a duty to act Performing the duty was possible Δ has necessary intent OTHER CRIMES AGAINST THE PERSON Rape - sexual intercourse by a male with a woman not his spouse w/o the woman's effective consent Fraud renders the woman's consent ineffective only if the fraud goes to the nature of the act (whether it is sex or not) Unlawful confinement of another involving Movement of person or their concealment in secret place Without authority of law Where the victim of a crime such as robbery or rape is confined or moved during the crime, many courts hold that kidnapping does not occur unless the confinement or movement increases the risk of harm to the victim and is not merely incidental to the other crime. Unlawful confinement Without victim's consent PARTIES TO A CRIME Commit the act constituting the crime Participate in either before or during is commission Use an innocent agent to commit it Note: Assistance after the crime does not create liability for the crime Participation in the offense - encouraging or assisting but NOT mere presence With the required intent Know the primary actor is going to commit the offense AND Intent (want/desire) to encourage or assist him in doing so - look for a motive for wanting the primary actor to successfully commit the crime Presence pursuant to an agreement to aid is sufficient to show participation An aider and abettor can be convicted even if the primary actor is acquitted The participant is a member of the class of persons protected by the crime (ex: buyer in a drug sale case) OR The crime inherently involves several types of participants and only some are made liable THE PREPARATION CRIMES Go far enough - i.e. - do something constituting a substantial step toward commission of the crime With specific intent to commit the crime NO defense Premeditation Voluntary Manslaughter 1 2 3 4 1 2 1 2 3 4 Rape or Sexual Assault a b Kidnapping 1 2 3 Involuntary Manslaughter Liability for Omissions Kidnapping: Rule False Imprisonment 1 2 When you can be guilty of a crime 1 2 3 1 2 1 2 Aiding and Abetting Elements Aiding and Abetting: Intent Aiding and Abetting: 1 2 Rules Aiding and Abetting: a Exceptions to b liability Attempt 1 2 Abandonment of Attempt Impossibility defense for Attempt a LEGAL impossibility is a defense b FACTUAL impossibility is NOT a defense Page 27 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Impossibility defense for Attempt Criminal Law c Impossibility is ONLY a defense in an attempt case - these involve mistaken beliefs by the Δ that the attempts will be successful NO defense b/c this is factual impossibility Impossibility: Mistake about one's 1 Impossible for Δ to perform the conduct he set out to perform OR 2 Cause the result he set out to cause ability 3 BUT mistakenly believes he will be successful Δ thinks his conduct would constitute a crime, but he is mistaken about the criminal law Impossibility: Mistake about This is LEGAL impossibility criminal law NO defense - this is factual impossibility Impossibility: Δ's intended conduct if completed would not constitute a crime b/c one of the Mistake about circumstances is not what is required for the crime -- If the circumstances were as Δ circumstances believed, his intended conduct would constitute a crime 1 Requesting someone to commit an offense (even if it is rejected immediately) Solicitation 2 With the specific intent they commit it 1 Entering into an agreement to commit a crime Conspiracy 2 The specific intent that the crime be committed 3 An overt act in furtherance by ONE member of the group All members of a criminal conspiracy are guilty of crimes committed by other members Co-Conspirator Rule of that conspiracy if those crimes are both: 1 Committed in furtherance of the scheme AND 2 A foreseeable result of the scheme - NOT a defense to conspiracy, but is a defense under the co-conspirator rule Conspiracy: - Effective withdrawal as a defense to the co-conspirator rule: Withdrawal 1 Fully communicated to all other members of the agreement 2 Before the crime is committed Conspiracy: Defense R: If ALL other members of the alleged conspiracy have been acquitted (or the equivalent) then Δ must be acquitted of No Meeting of Equivalents of Acquittal = Guilty Minds a Not guilty by reason of insanity b Person did not intend to go through with the crime DEFENSES 1 Effects criminal liability ONLY is it shows Δ lacked the intent required for the crime Ignorance or AND Mistake of Fact 2 The mistake was objectively reasonable - If the mistake shows an absence of a necessary specific intent, it need not be reasonable Larceny, other property crimes Specific Intent Burglary Crimes Attempt and conspiracy Any offense defined as doing something "with intent to . . ." Arson and Rape are NOT specific intent crimes 1 Δ must have been aware of the facts that constitute the crime Criminal Intent 2 Δ need not have known anything about the law a Purpose - conscious desire Modern Mens Rea b Knowledge - awareness of a practical certainty Definitions c Recklessness - awareness of a substantial risk d Negligence - Reasonable person would have been aware of a substantial risk Exception to mens rea requirement: Strict Liability = NO a Statutory rape - no need to know the victim's age mistake of fact b Bigamy - don't need to know you are still married defense c Regulatory crime - low penalty enforcement device If Δ intends to injure one person and accidentally inflicts a similar injury upon another Transferred Intent person, he will be treated as if he intended to injure the harmed person NOT a defense to say you were ignorant of the law, UNLESS Ignorance or Mistake of Law Page 28 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Ignorance or Mistake of Law Criminal Law A Δ's affirmative (but mistaken) belief that the criminal law did not prohibit her conduct is a defense if: 2 That belief was objectively reasonable 3 The Δ relied on either: a statute later held invalid; a judicial decision later overruled; OR an official interpretation of the law by a public official NOT a defense unless there is a specific knowledge mens rea that the law is being violated. 1 Facts show that Δ had a serious mental illness OR defect 2 this caused a defect in his reasoning abilities 3 As a result he did not either: a understand the nature of the act he was doing OR b understand that his act was wrong 1 Irresistible Impulse: Δ had an irresistible impulse 2 Durham: Δ's conduct a product of mental illness 3 MPC-Suffered from mental defect AND lacked substantial capacity to a appreciate the criminality of his conduct; OR b conform his conduct to the requirements of law. 1 Assume the situation as the Δ perceived it 2 Under those circumstances, would Δ have been legally entitled to do what he did - if yes, acquit (VERY rare) - Under M'Naghten, it is NOT a defense - May be a defense under statutory versions of insanity based on the Model Penal Code OR the irresistible impulse version of insanity If the Δ was unconscious, his behavior cannot constitute the necessary VOLUNTARY act Is involuntary only if: 1 Δ did not know the substance was intoxicating OR 2 Δ consumed substance under duress Note: If involuntary, we treat as a mental illness and apply the insanity test - Will acquit ONLY if the crime requires proof of specific intent (higher than recklessness under modern statutes) and the intoxication shows he lacked that intent - This can disprove premeditation but NOT malice aforethought - Courts can find that voluntary intoxication is irrelevant to criminal liability 1 The Δ was not predisposed to commit crimes like this AND 2 Police officers created the intent to commit the offense in her mind - Minority rule - objective test - police activity would cause a rznble person and unpredisposed person to form the intent to commit the crime 1 Δ believed that committing the crime would prevent an imminently threatened harm 2 Δ believed this threatened harm would be greater than the harm that would result from commission of the crime 3 These beliefs were objectively rznble 1 Δ wrongfully created the situation making the choice necessary OR 2 The Δ killed another to avoid his own life 1 Δ was compelled to commit the crime by a threat that if he did not do so, the threatening person would do: 2 Immediate and physical harm 3 To Δ or a third person Exception - Not a defense to a crime that consists of an intentional killing 1 Δ believed he was in imminent danger of being harmed by another 2 The force he used was necessary to prevent the threatened harm 3 These beliefs were objectively rznble 1 Δ rznbly believed she was threatened with imminent death or serious bodily injury AND 1 2 Deadly force used was necessary to prevent that harm. a General rule - opportunity to retreat is a reasonableness factor Page 29 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Mistake of Law: Advice of counsel Insanity Defense (M'Naghten) Other Insanity Defenses Insanity: Analysis Loss of Control and Insanity Unconsciousness Defense Intoxication Defense Voluntary Intoxication Defense Entrapment Defense Necessity Necessity is NOT a defense Duress or coercion Defense Self-Defense Self Defense with Deadly Force Deadly Force: Retreat b Minority rule - any opportunity to retreat must be taken before using deadly force ONLY if retreat is possible with complete safety - No duty to retreat when attacked in one's own home 1 A person who starts a fight cannot use force in self defense during the fight Self Defense: 2 An aggressor regains the right to use force in self-defense during a fight by either: Aggressor a Withdrawal from the fight OR b Giving notice of desire to do so A Δ charged with murder who actually but unrznbly believed killing was necessary in Deadly force in self defense is NOT entitled to acquittal, but should be convicted of manslaughter Homicide Cases instead of murder. Defense of Other 1 The Δ believed that another person was threatened with imminent unlawful harm by a third person Persons Defense 2 The Δ believed that the force she used was necessary to prevent the harm 3 These beliefs were objectively rznble -->did it rznbly appear to Δ that the person she aided was in the right Defense of Property R: It is a defense that force was used in the rznble belief that it was necessary to prevent unlawful interference with real or personal property Defense Limits: a Only NON-DEADLY force can be used b Force can only be used to prevent the interference, and NOT to LATER regain the property, except in immediate pursuit Deadly Force: Retreat Criminal Law Page 30 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Crim Pro DOUBLE JEOPARDY General Rules Once Δ placed in jeopardy for an offense, Δ can never again be tried for that same offense Second trial not barred if 1st ended BEFORE jeopardy attached Acquittals are always final - no 2nd trial allowed - a finding of insufficiency of evidence by the t/ct or app/ct is an acquittal - conviction of a lesser included offense is an implied acquittal of the charged crime The first proceeding ended in a mistrial declared for manifest necessity (ex: hung jury ) The first proceeding ended in mistrial declared on motion of Δ First trial ended in conviction reversed on appeal b/c of procedural error First trial ended in conviction rev'd on appeal b/c verdict was "against weight of evidence" 2nd prosecution is by a different sovereign jurisdiction Jury trial: when jury is sworn Bench trial: when first witness is sworn Jury trial: when jury is sworn Bench trial: When both (1) the parties have announced ready AND (2) the Δ pleads to the indictment Successive Prosecutions/Different Offenses Successive prosecutions for different offenses are barred ONLY if one offense is a lesser included offense of the other, b/c only then are the 2 offenses the "same" If each offense contains at least 1 element not contained in the other, then neither is a lesser included offense of the other and successive prosecutions are permitted Otherwise one is a lesser included offense of the other and successive prosecutions are barred Acquittal of 1 offense bars second prosecution for different but related offense if Δ shows both The precise factual basis for acquittal in first proceeding; and That fact also controls in second prosecution One Proceeding/Conviction for Several Offenses Conviction for several related offenses in 1 proceeding are barred ONLY if the legislature did not intend to authorize convictions for all If one offense if a lesser included offense of another, it is a rebuttable presumption that the legislature did not intend conviction for both Separate Sovereignties Multiple prosecutions and/or convictions permitted if done by separate sovereign gov'ts state and federal different states Double Jeopardy Law File a pretrial application for the writ of habeas corpus - this would permit Δ to raise the issue without going to trial and Δ would get a pretrial ruling on her claim from the judge. Also, if the judge rejects her claim - she can immediately and before trial appeal that ruling File a special plea of former jeopardy - this would permit Δ to go to the trial jury on any contested issue of fact raised by her claim. Privilege Against Self Incrimination Authorities cannot compel a person to give self-incriminating "testimonial" behavior Grant of Immunity Removes Protection If a person is granted effective immunity, the privilege no longer applies and the person can be compelled to answer Basic Rules - Exceptions - 2nd trial IS allowed 1 2 3 4 5 Federal attachment of jeopardy Attachment of jeopardy Rule Blockburger Test for determining "lesser included" Collateral Estoppel 1 2 Summary 1 2 General rule Examples of separate gov'ts - What options does Δ 1 have to raise a claim of double jeopardy 2 General rule General rule Page 31 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Crim Pro Use immunity Gives the person no protection from prosecution. BUT if Δ is prosecuted, the gov't cannot use against her as evidence her testimony or any evidence that the gov't obtained by using that information. Gives the person immunity from prosecution for any offense arising out of the transaction about which she testifies under the grant of immunity Protection Limited To TESTIMONIAL Behavior An intentional communication of one's thoughts State calls Δ as a witness and compels Δ to answer when prosecutors ask "did you do it?" Before trial, a police officer compels a suspect to tell the officer where the suspect hid the murder weapon Before trial, a police officer compels a suspect to tell the officer the date of suspect's 4th B'day to determine if intoxicated In a civil trial, a witness is asked whether he helped the Δ kill the victim and when the witness refuses to answer, the judge holds him in contempt Before trial blood and breath samples are taken to determine intoxication Walking along a line to see if intoxicated Standing in a lineup Speaking in a lineup At trial, standing and walking to be observed Search and Seizure What Constitutes a Search A "search" is any official action that intrudes upon a person's rzbl expectation of privacy aerial surveillance of fenced yard examination of trash left in yard determining #s dialed using a "beeper" to follow a car on public road dog sniff rigorous squeezing of luggage in bus overhead rack thermal image scan of residence Officers merely exercise their right to engage in "plain view" and do NOT search if they reach a location without violating the 4th A and simply look at something in open view This rule does NOT apply if when officers come upon an item in plain view, they are searching improperly Officers who go into an unoccupied or underdeveloped area of land not part of the dwelling's curtilage do NOT search Rzblness of Search Must be pursuant to a valid search warrant Must be based on probable cause (facts from which a rzbl person would conclude that there is a "fair probability" that seizable items will be found Contraband - something illegal to possess Fruits of crime - stolen property Instruments of crime Evidence that a crime was committed or that a particular person committed it 4th A Search Warrant Law Warrant must describe specifically (1) place to be searched and (2) items to be searched for and seized Must be issued on information constituting "probable cause": affidavit must set out facts from which issuing magistrate can make independent judgment that probable cause exists General rule: Before entering premises, officers must "knock and announce" and give occupants opportunity to admit the officers Transactional immunity Testimonial Examples of testimonial 1 2 3 4 Examples of Nontestimonial 1 2 3 4 5 Definition NOT a search 1 2 3 4 5 1 2 - YES a search Plain view Open fields 2 Elements 1 2 1 2 3 4 - Items subject to seizure Requirements Knock and Announce Page 32 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Knock and Announce Crim Pro Exception: No knock entry permitted if officers have rzbl suspicion that occupants would (1) resist officers by force or (2) destroy or remove items for which warrant issued Place described AND Within that place, those locations where described items might rznbly be located Items rzbly believed to be those described Other items found in plain view during search if probable cause exists to believe they - plain view doctrine does NOT apply if when the officers come upon an item in plain view, they are searching improperly Warrant affidavit relying on informant's tip helped by specific facts indicating: Informant was in general sense reliable and Informant had reliable source for this specific info Warrantless Searches Consent searches do NOT require a warrant or probable cause Effectiveness of Consent Consent must be voluntary Consent must be from either: someone with a general right of access to premises (actual authority to give consent), or someone rznbly believed by officers to have such access (apparent authority) Joint Occupation Situation Officers need consent from only one of several joint occupants Scope of consent Consent covers what a rzbl person in the situation would understand the words used to mean Vehicle Exception to Warrant Requirement - moving vehicles and those parked in public places can be searched w/o a warrant a. BUT probable cause is necessary b. Search can extend to any place where the items might be found Search Incident to Arrest - custodial arrest of a person in a vehicle (or immediately after getting out) permits as an incident of that arrest: a. Search of the passenger compartment (including the glove compartment) b. But NOT the trunk Inventory Inspection - properly seized or impounded vehicle may be administratively inventoried pursuant to standardized procedure Contents of Containers in Car - CAN be examined IF car can be searched A warrantless search is permitted if officers have both: Reason to believe delaying the search to get a warrant would result in removal or destruction of the items, and Probable cause to believe seizable items will be found Invalid arrest has no effect upon trial court's jurisdiction If valid custodial arrest made, automatic right to search 2 places: The person of the arrestee, which includes pockets and items found on the person of the arrestee, and Area of possible reach (broadly construed) If arrest is made inside premises: Page 33 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Limits of search 1 2 1 2 What can officers seize Informant analysis 1 2 Consent Searches - 1 2 - Automobile Searches Exigent Circumstances Searches 1 2 Arrests & Incidental Searches under Federal 1 Constitutional Law 2 - Crim Pro 1 2 Officers can automatically look in immediately adjoining places where persons might be concealed Protective sweep of entire premises can be made only if officers have rznbl suspicion that dangerous persons are present Reasonable arrest requires to believe person committed offense Warrant is required only if premises are entered to search for suspect Suspect's own premises - arrest warrant is sufficient Other premises - search warrant is needed If valid arrest is made, officers can automatically search Make sure search is AFTER arrest An arrest must be made pursuant to a valid arrest warrant Exceptions: Arrests without warrants are permissible if: Offense committed in officer's presence or view Probable cause to believe suspect committed a felony and reason to believe suspect is about to escape Suspect is found in a suspicious place and has committed a felony or breach of peace Suspect committed violation of protective order Suspect injured another and danger of further injury to victim Suspect found with stolen property Suspect injured member of family or household Probable cause to believe suspect committed a felony is based on admissible statement to officer Items which are required to be present in arrest warrants include: The name of the person to be arrested or a physical description The name of the offense the person is accused of committing The signature of the issuing magistrate, and The judicial office of the issuing magistrate An officer is permitted to break down the door of a residence to arrest someone when: 1 2 3 The officer has probable cause to believe the person committed a felony, and The officer gives notice of the officer's authority and purpose, and The officer is refused entrance Detention not a valid arrest can often be justified as a Terry Stop Terry stop for investigation may be made on rznbl suspicion: some objective basis for officer's suspicion that suspect has committed, is committing, or is about to commit a crime…BUT an anonymous tip is not enough if not adequately corroborated 1 2 R Arrest Law R 1 2 3 4 5 6 7 8 1 2 3 4 Non-Arrest Detentions and Citizen-Officer Contacts 1 2 3 1 2 - Limit on Field Stops Cannot be too lengthy Suspect cannot be extensively moved (not to station house) No automatic right to search If probable cause develops during field stop, detention becomes valid arrest Weapons search can be made if officer has rzbl fear for safety Must initially be limited to pat down Permissible only to determine if suspect has a weapon A traffic stop does NOT permit a full search as does an arrest Page 34 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Crim Pro 1 2 Rule: A suspect is seized only if either: The officer physically restrains him, or The officer makes a show of authority AND the suspect submits LINEUP LAW Δ has 6th Amendment right to lawyer present at lineup or show up IF it is conducted after judicial proceedings have begun a. NOT triggered by Δ's arrest b. No right to lawyer at showing of photographs c. Can be waived by Δ Δ has due process right not to have procedure be extremely suggestive a. Applies even where right to counsel does not b. Standard: Was procedure so suggestive that it creates high likelihood that witness will erroneously identify Δ as perpetrator? If witness identifies Δ at procedure conducted in violation of either rule: a. Prosecution cannot prove that identification b. Witness can still make in-court identification of Δ if prosecution establishes that this would have an independent source (e.g. a source independent of the procedure ) CONFESSIONS Confession may be inadmissible on any of numerous grounds, including: Involuntary Product of delay in bringing arrested Δ before magistrate Miranda violation 6th Amendment right to counsel violation Product of an unlawful arrest Confession involuntary (and constitutionally inadmissible) if: Result of coercion or threats, or On totality of circumstances, officer's misconduct overcame Δ's will Δ's undisclosed mental impairment alone will NOT create involuntariness Federal Constitutional Limits - - Confessions Law: In General Voluntariness 1 2 3 4 5 1 2 1 2 3 1 Miranda Some matters are only factors, including: Deception of the suspect by officers Improper delay in presenting the suspect before a magistrate Promise of a specific benefit made by a person in authority Miranda 5th Amendment rights apply only if both of the following are satisfied: Suspect is in custody: arrested or its equivalent a. Suspect must perceive himself as not free to leave b. Miranda NOT applicable during traffic stop or non-arrest field stop 2 Suspect is interrogated 1 2 a. b. c. d. 3 4 Miranda requires the following: Right to have counsel present during questioning Suspect must be given warnings: There is a right to remain silent Anything said may be used against the suspect The suspect has the right to have an attorney present The suspect has a right to an appointed attorney if unable to provide own Interrogation can begin in absence of attorney only if suspect first waives right to counsel No interrogation may occur after a suspect indicates a unequivocal desire to remain silent Page 35 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Crim Pro 1 2 Confession to which Miranda applies admissible only if prosecution proves: Warnings were given Suspect made voluntary and knowing waiver of rights a. Right to attorney during questioning (unless one was present) b. Right to remain silent Remember: Under Miranda, no warnings or counsel are required if the confession is volunteered by the Δ without interrogation Under Miranda, a person is not in custody just because the person is detained Rules: If a suspect invokes the right to counsel, officers may NOT reproach the suspect unless and attorney is present If a suspect who has invoked the right to counsel spontaneously seeks to discuss the crime with officers, officers may seek a waiver of counsel and interrogate the suspect - 1 2 3 6th Amendment Right to Counsel Scope of Fed If a suspect invokes the right to remain silent, the suspect may be reapproached if this is done very carefully 4 Any action which an officer should rznbly know is likely to result in an incriminating response is the equivalent of interrogation 5 Questioning after right to counsel was waived must cease only if suspect makes an unambiguous request for counsel In interrogation situations, the accused has a 6th Amendment right to counsel IF judicial proceedings have begun 6th Becomes applicable: 1 Δ has a right to counsel at questioning by undercover officer 2 Δ has a right to counsel at questioning even if not in custody 3 Police violate the right to counsel if they interfere with counsel contacting a client undergoing questioning - does not invalidate Miranda waiver, but it renders invalid a waiver of 6th right to counsel EXCLUSIONARY RULE Δ must have standing: a. Δ's objection must be based upon a violation of his underlying rights b. Search situations: means that the search must have intruded on the D's own privacy c. Vehicles: A mere vehicle passenger does not have standing to challenge a search. Fruit of the Poisonous Tree - if search unrznble, all fruit must be excluded - exceptions to exclusion in fed: a. Attenuation of the Taint - The taint b/t the police illegality and discovery of the evidence is attenuated b. Good Faith - A rznble officer would believe that the actions taken were rznble, b/c of a warrant OR a statute later held invalid - does NOT apply to most police actions taken without a warrant c. c) Inevitable Discovery - The evidence would inevitably have been obtained legally A Δ who takes the witness stand can be impeached by otherwise inadmissible Impeachment evidence exception to the - evidence obtained in violation of Miranda or in an unrznble search can be used to federal rule impeach - involuntary confession cannot be used to impeach No probable cause Unrznble Searches - ex: drugs in the trunk in an amber alert stop 1 Mere authorized presence in the premises is NOT enough Standing with 2 Presence pursuant to a short and commercial stay is NOT enough residences Fruit of Poisonous Tree Page 36 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Standing with residences 3 Crim Pro Presence as part of overnight personal visit IS enough Page 37 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Evidence RELEVANCE General Principles 1 Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence 2 All relevant evidence is admissible…UNLESS: a. some exclusionary rule is applicable, or b. the court makes a discretionary determination that the probative value of the evidence is outweighed by its prejudicial effect 1 2 3 4 5 6 Similar Occurrences R prejudicial effect considerations: Danger of unfair prejudice Confusion of the issues Misleading the jury Undue delay Waste of time Unduly cumulative If evidence concerns some time, event or person other than that involved in the case at hand…the evidence is INADMISSIBLE Exceptions to the general rule: п's accident history Similar accidents caused by same event or condition Intent in issue Comparable sales on issue of value Habit Industrial custom as standard of care п's accident history is INADMISSIBLE because it shows nothing more than the fact that the п is accident-prone and has a general propensity for carelessness Exception: п's prior accidents are admissible if the CAUSE of п's damages are at issue (Δ could use prior accidents to show that п's injuries were caused by a previous accident) Other accident's involving Δ are INADMISSIBLE because they suggest nothing more than general character for carelessness Exception: other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for 3 potential purposes: Existence of a dangerous condition Causation prior notice to Δ Note: Substantial similarity is also the rule governing the admissibility of experiments and tests person's prior conduct may provide inference of intent on later occasion (e.g. discrimination in hiring practices) Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue Habit of a person (or routine of a business organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted on the occasion at issue 2 defining characteristics of habit: Frequency of the conduct particularity of the conduct 1 2 3 4 5 6 п's Accident History R Similar Accidents R Caused by Same Event or Condition 1 2 3 Intent in Issue Comparable Sales on Issue of Value Habit - 1 2 Page 38 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Industrial Custom as Standard of Care L O S S Liability Insurance R Policy Based Exclusions "LOSS" 1 2 Evidence Key words that suggest habit: "always," "automatically," "invariably," "instinctively," and "habitually" Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted This evidence is admissible…but is NOT conclusive Liability Insurance Offer to pay Hospital or Medical Expenses (severable, but not in CA) Settlements (non-severable) Subsequent Remedial Measures Evidence that a person has, or does not have, liability insurance is INADMISSIBLE to prove the person's fault or absence of fault Exception: Evidence of insurance may be admissible to establish: proof of ownership/control of instrumentality or location IF controverted, or For purposes of impeachment of a witness Note: A limiting instructions should be given to the jury when the evidence is admissible for one purpose but not another Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is INADMISSIBLE to prove liability Note: Statements of fact made in connection with an offer to pay hospital or medical expenses is ADMISSIBLE Example: Donna's car hit pedestrian Pablo. Donna immediately ran to Pablo and said (a) "Don’t worry, I'll pay your hospital bills. (b) I'm sorry I ran the red light." Offer to Pay Hospital R or Medical Expenses Subsequent R Remedial Measures 1 2 Statement (a) would NOT be admissible, but statement (b) WOULD be admissible INADMISSIBLE for the purpose of proving negligence, culpable conduct, product defect, or need for warning Exception: Such evidence may be admissible to establish: Ownership/Control IF controverted, or Feasibility of safer condition IF controverted Examples: post-accident repairs, design changes, policy changes Settlements 1 - In a products liability action, evidence of written notification of a product defect sent by a manufacturer to a purchaser is ADMISSIBLE to prove existence of the defect Civil Actions Evidence of a settlement or offer to settle a disputed claim is INADMISSIBLE to prove liability or weakness of a party's case Also, statements of fact made in the course of settlement discussions are INADMISSIBLE But, evidence of a settlement may be admissible for purposes of impeachment of a witness on the ground of bias Note: The exclusionary rule ONLY applies if there is a claim that is disputed (at time of settlement discussion) either as to validity of the claim or amount of damages 2 1 2 3 4 Criminal Actions The following are INADMISSIBLE: Offer to plead guilty Withdrawn guilty plea Plea of nolo contendre Statements of fact made during any of the above plea discussions Page 39 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Character Evidence Purposes 1 2 3 Character Evidence 1 Rules - Criminal Case 2 3 4 5 Character Evidence 1 Rules - Civil Cases 2 3 Δ's character in a criminal case Methods a Δ can use to introduce evidence of his good character 1 2 - Evidence Note: A guilty plea (not withdrawn) is ADMISSIBLE CHARACTER EVIDENCE Def - a person's general propensity or disposition Potential purposes: Person's character is a material element in the case Character evidence to prove conduct in conformity with character at the time of the litigated event Witness's bad character for truthfulness to impeach credibility п can NOT introduce evidence of Ds bad character to show conformity in committing THIS crime Δ IS allowed to present evidence of relevant GOOD character traits to show conformity with his good character - opinion or rep only Once Δ presents evidence of good character - п can present character evidence to show bad character (rep, opinion, specific acts Except prior crimes) Prior crimes or prior bad acts can't be used to show conformity BUT can be used for MIMIC purposes. (can be excluded under 403) If D testifies - he automatically places his character for truthfulness at issue No evidence of conformity Some other purpose may allow character evidence (negligent entrustment, defamation) If a party testifies - they automatically place their character for TRUTH (credibility) at issue NOT admissible during the prosecution's case in chief to prove conduct in conformity with A Δ, during the defense, may introduce evidence of a relevant character trait to prove conduct in conformity therewith - if a Δ does this he opens the door to rebuttal by the prosecution A Δ's character trait is NEVER an element of a crime, so it is NOT admissible as a material element in the case Reputation Opinion May NOT use specific acts even if they illustrate the trait Watch out for the WRONG character trait, must be testifying on a relevant character trait - that relevant trait may be that the Δ is "law abiding" Can only do this when the Δ opens the door, and in the following ways: Cross examine the Δ's character witnesses with "Have You Heard" and "Did You Know" questions about specific acts of the D that reflect adversely on the particular character trait that the Δ has introduced - must have a good faith basis for the question - must take the answer you get - NO extrinsic evidence to prove the bad acts Call its own reputation or opinion witnesses to contradict the D's witnesses The Δ testifying for himself does NOT open the door to this kind of testimony Generally this is irrelevant Exceptions: Criminal Δ may introduce evidence of victim's violent character to prove victim's conduct in conformity - i.e. - the victim was the first aggressor Separate rule of relevance - if the Δ, at the time of the alleged self-defense was AWARE of the victim's violent reputation or prior specific acts of violence, such awareness may be proven to show the Δ's state of mind Proper methods --> reputation and opinion - once again NO specific acts Prosecutions 1 Rebuttal to D's introduction of character evidence 2 Victim's character in self defense criminal 1 case 2 - Page 40 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Evidence 1 2 Victim's character in sexual assault criminal case 1 2 Rebuttal: Prosecution can give evidence of victim's good character In FEDERAL court, prosecution can rebut by showing Δ's character for violence Rape shield law (criminal and civil) Where Δ is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily Inadmissible Opinion or reputation evidence about the victim's sexual propensity OR Evidence of specific sexual behavior of the victim Exceptions: Specific sexual behavior of the victim to prove that someone other than the D was the source of semen or injury to the victim Victim's sexual activity with the Δ if the defense of consent is asserted Generally NOT admissible to prove conduct in conformity - Δ can't even bring it in himself Exceptions Where such character is an essential element of a claim or defense, in which case it is provable by reputation, opinion and specific acts - 2 situations where we see this - negligent hiring/entrustment OR defamation Civil actions where the underlying conduct is criminal Federal - not allowed in ANY civil action Other crimes or specific bad acts of Δ are NOT admissible during the prosecution's case in chief if the only purpose is to suggest that b/c of Δ's bad character he is more likely to have committed the crime currently charged BUT, if the Δ's other crimes or bad acts show something specific about the crime charged (more than mere bad character) such evidence may be admissible as evidence bearing on guilt, but ONLY if the Δ is actually contesting the issue Most common non-character purposes: (MIMIC) Motive Intent Mistake or accident, absence of Identity - for modus operandi it must be UNIQUE on prior occasions and this crime was carried out in the same unique way Common scheme or plan - seemingly unrelated crimes which are related By conviction OR Evidence that proves the crime occurred - need only produce sufficient evidence that a rznble juror could conclude the Δ committed the other crime Upon Δ's request, the prosecution MUST give notice of intent to use MIMIC evidence Can introduce this evidence during the prosecutions case in chief, the door need NOT be opened Court will always weigh the probative value vs. prejudice and give limiting instructions when such evidence is admitted MIMIC evidence may be admissible in civil cases as well FEDERAL only - in a case alleging sexual assault or child molestation, PRIOR specific sexual misconduct of the Δ is ADMISSIBLE as part of the prosecution's of п's case in chief of for any relevant purpose, including D's propensity for sex crimes AUTHENTICATION OF WRITINGS If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic - in the absence of a stipulation as to authenticity, a foundation must be made in order for the document to be admissible Page 41 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 1 2 Character evidence in Civil cases 1 2 a Using Δ's crimes for R Non-character purposes M I M I C Method of Proving 1 2 MIMIC crimes Sexual Misconduct to show Propensity Authenticity in General Methods of Authentication 1 2 3 4 - Evidence Witness' personal knowledge Proof of handwriting by: (a) lay opinion - must be on the basis of familiarity as a result of experience in normal course of affairs (1X seeing enough on MBE) (b) expert comparison opinion (c) jury comparison Ancient Document Rule - authenticity may be inferred if the document is: (a) at least 20 years old (b) facially free of suspicion AND (c) found in a place of natural custody Solicited Reply Doctrine - evidence it was received in response to a prior communication Conditional relevancy std - document is admissible if court determines there is sufficient evidence from which a rznble juror could conclude the document is genuine Official publications Certified copies of public or private records on file in public office Newspapers or periodicals Trade inscriptions and labels Acknowledged document Commercial paper Was the record made by or from information transmitted by a person with knowledge of the events or conditions recorded Was it made at or near the time of the event or condition recorded Was it in the regular course of your business to make such records Was it in the regular course of your business to make keep records For self authentication - affidavit by custodian or other person capable of testifying to the above - original or exact duplicate of the business record is attached to the affidavit - notice to the other parties at least 14 days prior to trial by filing with court and prompt notice to the other parties Witness may testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed - don't have to be photographer, just have personal knowledge of what is in the photo BEST EVIDENCE RULE A party who seeks to prove the CONTENT of a writing (sound recording, photo, x-ray, film) must either produce the original writing or provide an acceptable excuse for its absence The writing is a legally operative document - the writing ITSELF creates the rights and obligations (deed, patent, mortgage, written K) Witness is testifying as to facts that she learned SOLELY from reading about them in a writing When a witness with PERSONAL KNOWLEDGE testifies to a fact that exists INDEPENDENTLY of a writing which records the facts Ex) transcript from a testimony The writing itself, any counterpart intended to have the same effect; any negative of a film or print from the negative; computer printout Duplicate - any counterpart produced by any mechanical means that accurately reproduced the original. A duplicate is admissible to the same extent as original UNLESS it would be unfair or genuine question is raised as to authenticity of original Handwritten copy is NEITHER an original nor duplicate Lost or can't be found with due diligence Destroyed without bad faith Page 42 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Self Authenticating 1 2 Documents 3 4 5 6 Business Records 1 2 3 4 Authentication of Photos Rule When does it apply? 1 2 When does it NOT apply? What qualifies as the 1 "original writing"? 2 Excuses for NonProduction of Original 3 1 2 Excuses for NonProduction of Original 3 Evidence Cannot be occupied with legal processes Note: Courts must be persuaded by preponderance of the evidence that excuse has been established. If the court IS persuaded - secondary evidence is then admissible Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection 2 Certified copies of public records 3 Collateral documents - if court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence WITNESSES 1 Personal knowledge Testimonial 2 Oath or affirmation Qualifications Dead Man's Statute - MULTISTATE --> Witness is not ordinarily incompetent merely b/c she has an interest in the outcome of the litigation. BUT, under a Dead Man's Statute - in a civil action, an interested party is INCOMPETENT to testify in support of her own interest against the estate of a decedent concerning communications or transactions btw the interested party and the decedent. The facts must specifically tell you that the J has a Dead Man's Statute Leading Rule: On direct --> get serious Exceptions - you CAN lead on direct if: 1 Introductory matters 2 Witness is youthful or forgetful 3 Hostile witness 4 Adverse party or someone under their control R On cross --> leading is generally allowed - Witness may not READ from prepared memo; must testify on basis of current Refreshing recollection BUT can show witness a writing to jog his memory. The writing need not Recollection be admissible b/c its not being offered into evidence - Safeguards for adversary: 1 inspect memory refresher 2 use it on cross 3 introduce it into evidence Past Recollection Elements: 1 Showing writing to WITNESS ON THE STAND fails to jog his/her memory Recorded (HS 2 Witness had personal knowledge at former time Exception) 3 Statement was either MADE by witness or ADOPTED by witness 4 Making or adopting occurred when event was fresh in witness' memory 5 Witness can vouch for accuracy of writing when made or adopted - Memo can not be read into evidence by party using it as a substitute for testimony. BUT opposing party may introduce it. 1 Rationally based on witness' perception (personal knowledge) AND Lay Opinion 2 Helpful to jury in deciding a fact Admissible If: - Qualifications: Education and/or experience Expert Opinion - Proper subject matter - scientific, technical, or specialized knowledge that will be HELPFUL to the jury in deciding a fact - Basis of Opinion - rzbl degree of probability or rzbl certainty - Permissible Data Sources - personal knowledge; other evidence in the trial record made known to expert thru hypo, facts outside the record IF of a type rzbly relied upon by experts in the particular field forming the opinion. Note: if expert is testifying based on hearsay or other inadmissible info - the expert may only state in GENERAL terms what he relied upon - can't disclose inadmissible evidence to jury - Reliability - Expert opinion must be sufficiently reliable Daubert Factors T Testing of principles or methodology R Rate of error A Acceptance by other experts in same discipline Exceptions Page 43 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 1 Daubert Factors Evidence P Peer review and publications 1 On direct of a party's OWN expert - may be READ into evidence to prove the TMA (as Ways to Use substantive evidence0 Learned Treatise in 2 On cross of opponent's expert - read in to evidence to impeach and contradict. Aid of Expert Comes in as substantive evidence (for TMA) Testimony Note: Can NOT be introduced as an exhibit - ONLY read into evidence - Opinion testimony (lay or expert) IS permissible even if it addresses an ultimate issue Ultimate Issue in the case BUT we're not going to let a witness just quote from a statute b/c that's not helpful to the jury - they don't understand legal jargon - CRIMINAL Cases in FRE Only --> Ultimate issue IS still a proper objection IF expert seeks to give direct opinion that D did or did NOT have relevant mental state Cross Examination R Credibility and Impeachment Party has a RIGHT to CX any opposing witness who testifies at the trial Scope - FRE - direct Bolstering Own Witness - can't do until AFTER witness' credibility has been attacked. The exception is a prior identification of a person - this is a HS exception. - Impeachment of own witness - permitted WITHOUT limitation Impeachment 1 Prior inconsistent stmt - oral and written if there is a clear inconsistency - Exception - prior inconsistent stmt may be admitted both for impeachment and methods (Note: substantive evidence if it was a prior inconsistent stmt given orally under oath AND as These DO NOT come part of a formal hearing, proceeding, trial, or depo in for the TMA - only - Confrontation - Confrontation timing is flexible - must be given an opportunity at some for the limited point to return to the stand and explain or deny prior inconsistent stmt purpose of 2 Bias, Interest, or Motive impeachment) - Confrontation - in court's discretion - Extrinsic evidence - Court has discretion to permit extrinsic evidence even if witness admits bias 3 Sensory deficiencies - Confrontation required? NO - Extrinsic evidence allowed? NO 4 Bad reputation or opinion about witness' character for truthfulness - Confrontation required? NO - Extrinsic evidence allowed? YES - Reputation or opinion ONLY 5 Criminal Convictions 1. Conviction of any crime involving dishonesty or false stmt may be used to impeach any witness (must involve the uttering of false words) 2. If conviction does NOT involve dishonesty or false stmt - it must be a felony , and the court may exclude in its discretion, if probative value on issues of witness credibility is outweighed by danger of unfair prejudice to a party 3. Conviction, or release from prison, whichever is later, generally must be within 10 years of trial 4. You can ask witness to admit or introduce record of conviction WITHOUT prior confrontation 6 Bad acts (without conviction) that reflect adversely on witness' character for truthfulness - Confrontation on CX is ONLY permissible means - No extrinsic evidence - Cross examiner must have a GF basis and ability to inquire lies in court's discretion If no charges were ever brought --> the bad act may be allowed in Fed Court but can NOT come in Tex Court Page 44 8bffa6b5-6615-433c-b199-f672f3b1636f.xls - 7 - Rehabilitation 1 2 Objections to Questions Asked of Witnesses "CALFUN" C A L F U N Introduction 1 Evidence If the witness is testifying for prosecution and is himself awaiting his OWN trial - the Δ may ask about the witness' arrest b/c arrest is relevant to show bias. The W is testifying for prosecution to curry favor to get a good deal for himself. If witness denies - you can prove with extrinsic evidence Contradiction Extrinsic evidence is NOT allowed for the purpose of contradiction IF the fact at issue is COLLATERAL. A fact is collateral if it has no significant relevance to the case or to the witness's credibility. Showing witness' good character for truthfulness can ONLY come in when impeachment CLEARLY suggested witness was lying. Reputation or opinion only Prior consistent stmt to rebut a charge of recent fabrication may be admissible to rebut the charge IF the stmt was MADE BEFORE the motive to fabricate arose. Requires more than a general bad character attack. This comes in as substantive evidence for the TMA. Compound-Requires a single answer to more than one question Argumentative-Rhetorical question posed to harass/upset Leading-Suggests the answer in its wording Facts not in evidence-Assumes facts which have yet to be established Unresponsive: Response doesn't correspond to question (Yes/No question form but witness tells a story ) Narrative-Calls for a story PRIVILEGES If federal action based on FEDERAL QUESTION jurisdiction…privileges are governed by the common law as they might be interpreted by the federal courts If federal action based on DIVERSITY jurisdiction where state substantive law applies to the parties' claims…privileges are governed by STATE law Note: In diversity actions, federal courts will also apply state law on (1) competency, (2) burdens of proof, and (3) presumptions A/C privilege applies to: Confidential communications Between attorney and client (or representative of either) Made during professional, legal consultation Unless privilege is waived by the client Or an exception is applicable Exceptions Future crime or fraud Client puts legal advice in issue Attorney-client dispute Definitions Confidential communications - client must intend confidentiality…NO privilege if client knows that 3rd party is listening in or if client asks attorney to disclose the communication to a 3rd party Joint Client Rule - If 2 or more clients with a common interest consult the same attorney, their communications with counsel concerning the common interest IS privileged as 3rd parties…but is NOT privileged between the clients Attorney - member of the bar or person that client rzbly believes is a member of the bar Representative of the attorney - any agent rzbly necessary to facilitate the provision of legal services (e.g. accountant working with attorney) Client - includes person seeking to become a client 2 Attorney-Client Privilege 1 2 3 4 5 1 2 3 - - - Page 45 8bffa6b5-6615-433c-b199-f672f3b1636f.xls - - Physician-Patient Privilege 1 2 - Evidence Representative of client - any agent rzbly necessary to facilitate the provision of legal services (e.g. for corporate client, any employee who communicates with corporation's attorney to enable attorney to provide legal services to the corporation) Professional legal consultation - primary purpose of communication must be to obtain or render legal services, NOT business or social advice Waiver - Client is holder of privilege, so client alone has power to waive by disclosure of communication to 3rd party…privilege continues after A/C relationship ends and even after death of client…client's estate has the power to waive the privilege after client's death Note - privilege does NOT apply to underlying information, pre-existing documents, or physical evidence Doctor-patient statutory privilege applies to: Confidential communication or information acquired by physician from patient For purposes of diagnosis or treatment of a medical condition Note: privilege also applies to psychotherapists (MDs who treat mental/emotional illnesses) Federal distinction: In federal actions based on FEDERAL QUESTION jurisdiction, privilege exists for psychotherapists, but NOT for usual doctor-patient confidences (e.g. gall bladder treatment) Federal Exception: Privilege does NOT apply if patient expressly or impliedly puts condition in issue Note: on the MBE…the doctor/patient privilege usually does NOT apply Spousal Immunity - In a criminal case, a CURRENT spouse cannot be compelled to testify against the Δ spouse Witness-spouse...NOT the Δ-spouse...holds the privilege Witness-spouse may voluntarily testify against the Δ-spouse in he/she so chooses - - Husband-Wife Privilege 1 - 2 - Confidential Communications Between Spouses - A spouse or former spouse is NOT required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made during marriage. BOTH spouses hold this privilege Exceptions applicable to both privileges: Communications or acts in furtherance of future crime or fraud Communications or acts destructive of family unit (e.g. spousal/child abuse) HEARSAY Out of court statement of a person (oral or written) Offered to prove the truth of the matter asserted Hearsay is INADMISSIBLE unless an exception or exclusion applies Principal Categories of non-hearsay statements: Verbal Act (legally operative words) Situation where the substantive law attaches legal significance to certain words just because they were spoken Examples: Contract offer or cancellation, making a gift, perjury, bribe, fraud, defamation, words accompanying ambiguous acts To show effect on person who heard or read the statement Circumstantial evidence of speaker's (declarant's) state of mind - out of court stmt of intention for FUTURE are admissible as state of mind to show person engaged in planned behavior (can be any amount of time) --> Hillmon Doctrine Page 46 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 1 2 Definition 1 2 R Non-Hearsay Statements 1 2 3 4 Prior Statements of R Trial Witness 1 2 3 4 Party Admissions - R There will be at least SIX questions on this 1 2 - Evidence Prior inconsistent stmt used to impeach A witness's own prior statement, if offered for the truth of the matter, is hearsay and is INADMISSIBLE unless an exception or exclusion applies Witness statement exclusions from hearsay: Witness's prior statement of identification IF person making prior ID is on witness stand Witness's prior inconsistent statement IF prior statement was under oath and made during formal trial, hearing, proceeding or deposition Prior consistent statement used to rebut charge of recent fabrication or improper motive or influence Statement of co-conspirator made in furtherance of conspiracy Any statement made by a party (п or Δ) is admissible against the party Statement does NOT have to be against declarant's interest when made Declarant need not have personal knowledge Vicarious Admissions - statement by agent/employee is admissible against principal/employer if: The statement concerns a matter within the scope of agency/employment, and statement must relate to speaker's job duties The statement is made during agency/employment Does NOT mean on the job…but during employment HEARSAY EXCEPTIONS 1 Former Testimony (need unavailability) Exceptions 2 Statement Against Interest (need unavailability) 3 Dying Declaration (need unavailability) 4 Excited Utterance 5 Present Sense Impression 6 Present State of Mind 7 Declaration of Intent 8 Present Physical Condition 9 Statement Made for purpose of Medical Diagnosis or Treatment 10 Business Records 11 Public Records Regardless of whether a hearsay exception is satisfied, testimonial statements against Criminal Δ's Right of a Δ are prohibited if: Confrontation (6th 1 The declarant is unavailable, and Amendment) 2 The Δ has had no opportunity for cross-examination 1 2 3 4 Testimonial statements include sworn testimony: At a grand jury At a prior trial At a preliminary hearing, and Made in response to police questioning (whether sworn or unsworn) Exception: Does NOT apply if declarant is unavailable due to Δ's wrongdoing Death or illness Absence from the jurisdiction Privilege Refusal to testify Lack of memory Elements: Former testimony given at a former proceeding or in a deposition Of a now unavailable witness Grounds of Unavailability 1 2 3 4 5 Former Testimony 1 Exception 2 Page 47 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Former Testimony Exception 3 4 Evidence Is admissible against a party who, on the prior occasion, had an opportunity AND motive to cross or develop the testimony of the witness Issue in both proceedings must be essentially the same - there is NO opportunity to cross in a grand jury proceeding Rationale - reliability assured by cross on prior occasions Elements: An unavailable declarant's Statement against his or her: Pecuniary Proprietary OR Penal interest Rationale - not likely to lie when making a personally damaging statement Must be against interest WHEN made Any person, not just a party, can make a stmt against interest Must have personal knowledge that it is against interest Criminal cases - stmt against penal interest, when offered to exculpate D, must be corroborated Elements: Statement made under a belief of impending and certain death (don't have to actually die) - need to have given up all hope of survival By a now unavailable declarant Concerning the cause or surrounding circumstances of the declarant's death ONLY to homicides in criminal cases and to ALL civil cases Elements: Statement concerning a startling event Made while the declarant is still under the stress of excitement caused by the event Statement Against Interest Exception 1 2 a b c - Dying Declaration Exception 1 2 3 Excited Utterance Exception 1 2 a b c Present Sense Impression Exception 1 2 Rationale - excitement suspends one's capacity to fabricate Factors to consider to see if the declarant is still under the stress: Passage of time Nature of the events Visual clues - exclamatory phrases; excitement oriented verbs; exclamation point Elements: Description of an event Made WHILE the event is occurring OR immediately thereafter Rationale - declarant has no time to fabricate Def - Contemporaneous statement concerning declarant's present state of mind, feelings or emotions Rationale - contemporaneous stmts about matter as to which declarant has unique knowledge Statement of declarant's intent to do something in the future - including the intent to engage in conduct with another person Statement made to anyone about declarant's CURRENT physical condition - cannot be a stmt about what you felt in the past Elements: Statement made to anyone concerning Past or present symptoms or general cause of condition Made for the purpose of treatment or diagnosis Page 48 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Present State of Mind Exception Declaration of Intent Exception Present Physical Condition Exception Statement for Purpose of Medical 1 2 Treatment or Diagnosis Exception 3 Statement for Purpose of Medical Treatment or Diagnosis Exception Evidence Stmt about the general cause of the injury is permissible, but the specific cause will be redacted out - it makes NO difference that the stmt is made to a physician retained solely for the purpose of testifying as an expert Elements: Was the record made by or from information transmitted by a person with knowledge of the events or conditions recorded Was it made at or near the time of the event or condition recorded Was it in the regular course of your business to make such records Was it in the regular course of your business to make keep records - stmt is not admissible if information came from another party, not employed by you unless it falls under another hearsay exception Records of a public office or agency setting forth: The activities of the office or agency OR Matters observed pursuant to a duty imposed by law OR Findings of fact or opinion resulting from an investigation authorized by law Exception - police reports and investigatory findings are NOT admissible against the D in a criminal case. - Can't use the business records to get in a police report either Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant Judicial Notice Notorious-Matters of common knowledge in the community Manifest-Capable of certain verification through easily accessible, well-established sources In criminal cases - the jury MAY accept the fact noticed; thus, its effect is only to relieve the п of burden of producing evidence on that fact In civil cases - the fact judicially noticed is conclusively established Business Records Exception 1 2 3 4 Public Records Exception a b c Impeachment of Hearsay Declarant's Exception When is it appropriate? Effect on case 1 2 - Page 49 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Real Property KEY w/ Estates Fee Simple Absolute a b c d Life Estate ESTATES RIGHT of Possession - an estate always has one PRESENT FREEHOLD ESTATES Runs forever and is fully alienable Courts presume a fee simple unless language shows a CLEAR intent otherwise ALL restraints on alienation are void (ignore them), however a condition on the exercise of a fee simple is fine Ex: O to A, but if A tries to sell it to B (void); but, O to A, but if A allows B on it to C (fine) A right of first refusal is OKAY NEVER measured by time , but always by life - Could be created by implication, don't need any "magic" words Forfeiture restrictions are OKAY - does not violate the rule against alienation Measuring life is someone other than the life estate holder If the life tenant dies before the measuring life dies, the life estate passes to the estate of the life tenant until the measuring life dies All a life tenant CAN do is maintain the estate - means continuing the normal use of the land in its present condition If they do MORE or LESS than maintain they are guilty of waste: voluntary; permissive; ameliorative Def - Any affirmative action beyond the right of maintenance causing HARM to the premises (i.e. - cutting down shade trees; selling oil) Can only continue the normal use, any change of use is voluntary waste and the life tenant is liable to the holder of the future interest Sale of crops is NOT waste Exceptions Prior use "Open mines doctrine" Life Estate pur autre vie Rights and Duties of R the Life Tenant Voluntary Waste a b c PU R Reasonable repairs G Grant E Expoitation Def - failing to maintain (really talking about inaction) Permissive Waste Must do 3 things to avoid permissive waste: 1 Repair - life tenant must keep the property in repair w/ ORDINARY repairs, but NOT replacement 2 Taxes - life tenant pays ALL the taxes - still the future interest must make sure they are paid or he loses his interest at a tax sale 3 Interest - life tenant is only responsible for the interest on a mortgage (future interest is responsible for the principal) a Obligation is limited to the amt of income received from the land OR if the life tenant is Permissive Waste: personally using the property, the reasonable rental value of the land Liability of Life b No need to insure the property tenant - Tenant responsibilities T Taxes R Repairs I Insurance not needed M Mortgage Ameliorative Waste - Def - type of voluntary waste that occurs when the affirmative act alters the property substantially, but INCREASES the value of it R If changed conditions have made the property relatively worthless in its current use, the life tenant can tear it down w/o liability to the holder of the future interest Def - gifts to a class of UNNAMED persons Class Gifts Rules: 1 Members of the class who predecease the testator are eliminated and do not recover; their gift LAPSES Page 50 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Class Gifts Real Property 2 Once the class is established, when the will is executed, the class stays open to accommodate those who later meet the definition of a class member 3 Rule of Convenience: Class closes when any one of the class is entitled to a DISTRIBUTION - This rule does not apply if the grantor specifies otherwise FUTURE INTERESTS This means future possession. The interest exists NOW, but possession will not come until later, if at all Def - grantor gives LESS than the full interest he held --> these are NEVER subject to RAP 1 Reversion 2 Possibility of Reverter 3 Right of Entry 1 Remainder 2 Executory interest Def - the interest kept by the grantor when he gives LESS than the durational estate the grantor had a There is a reversion as long as there is a chance it will return to the grantor - it is not certain to send it back to the grantor b NEVER subject to RAP c Can be transferred freely Def - whenever grantor gives a fee simple determinable he keeps this a NEVER subject to RAP b Can be transferred freely Def - ends automatically when the condition happens Language to look for: 1 For so long as 2 Until 3 While 4 During Def - whenever grantor gives a fee simple on a condition subsequent he keeps this a Grantor MUST EXPRESSLY reserve a right of entry b NOT subject to RAP c Cannot be transferred inter vivos in a conveyance - but a transfer by will or by intestacy is okay Def - Title does not automatically go back to the grantor if the condition is violated, he must exercise the right of entry Language to look for: 1 Provided however (and gives a right to reenter and retake) 2 But if (and gives a right to reenter and retake) 3 On condition that (and gives a right to reenter and retake) + "for the purpose of" - NO effect on title <-- not sufficient CATEGORY 2: FUTURE INTERESTS GIVEN A GRANTEE - Vested remainder - nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it (we know who will take and there are no conditions to taking) - Vested remainder subject to open - remainder interest is to a class whose members are not yet fully known - the class remains open to allow for future persons to qualify (aka vested remainder subject to partial divestment) - Contingent remainder - something has to happen before the remainder can become possessory: (1) a condition; (2) grantee is not in existence; (3) identity of exact taker is unknown (A's widow ) - Operates to cut short the estate the comes before it; it does NOT come into possession at the natural expiration of the earlier estate - If a future interest in a grantee is not a remainder - it MUST be an EI Page 51 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Future interests Future Interests Retained by GRANTOR Future Interests Given a Grantee Reversion Possibility of Reverter Fee Simple Determinable Right of Entry (Power of Termination) Fee Simple on a Condition Subsequent Remainder Executory Interest Executory Interest Real Property What estates does it 1 2 apply to? 3 Rule Timing Perpetuity Saving Clause Options and Rights of First Refusal Charity to Charity Exception Class Gifts If a future interest in a grantee CUTS SHORT an earlier estate, it MUST be an EI Holder of EI can NOT sue life tenant for waste RULE AGAINST PERPETUITIES Contingent remainders Executory interests Vested remainders subject to open If there is ANY chance than an interest might vest outside of a life-in-being + 21 years -> that interest is void The validity of the grant is determined at the time of creation and it doesn't matter if the interest actually DOES vest within the time period for RAP Saves a grant from being voided by RAP by making sure vesting MUST occur within the time period of the rule DO violate RAP - if they could be exercised outside the time period RAP never violated if the gift over is from one charity to another charity The Unborn Spouse Watch for facts where the class is open and the gift is contingent on a class member reaching an age of anything beyond 21 ANYONE, regardless of age, can get knocked up and have a kid If RAP voids the gift to ANY member of the class then ALL members of the class lose EVEN THOSE who have already satisfied the condition Watch for a gift following a widow or widower's LE, where the gift cannot vest until the widow/widower dies Ex) O to A for life, then to A's widow for life, then to A's children who are then living. At the time of A's grant - the woman who will turn out to be A's widow may not be born yet, so the vesting to A's descendents COULD come outside the time period. Does not make any difference whether A is married at the time of the grant. Remember - the grant must be written in such a way so that the vesting cannot occur until the widow/widower dies With transfer by WILL - look at the situation upon T's death. If by DEED - look at situation at time of DEED. Concurrent Ownership There are 2 types of concurrent ownership: Joint Tenancies Tenancies in Common Two characteristics: Right of Survivorship If there are four joint tenants, each tenant owns an undivided 1/4 interest in the property. If one of the tenants dies, then the other three tenants then own an undivided 1/3 interest…and so on. The surviving tenants take automatically…NOT by inheritance. Right to Partition Any party can ask for a partition, but in so doing, lines are drawn and the tenant requesting the partition is no longer a tenant Requires the 4 unities of (TTIP): Time (all interests must vest at the same time) Title (the grant to all JTs must be by the same instrument) Interest (all JTs must take the same kind and same amount) Possession (all JTs must have identical rights of possession) Language needed to create a JT: Must clearly make intention known (in not clear, court will deem TIC) Introduction 1 2 Joint Tenancy 1 - 2 Creating a Joint Tenancy T T I P - Page 52 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Real Property Necessary language for exam: "as joint tenants with right of survivorship" or "in joint tenancy with right of survivorship" NOT "To Michael and Paula jointly" or "To Michael and Paula as joint owners" 2 ways to destroy a JT: Partition (a voluntary destruction), Severance (an involuntary destruction) 4 ways to sever a JT: A conveyance by one of the JTs One JT's transfer of his interest creates a severance that severs just the sellers JT, turning it into a TIC in the buyer, with the other JTs continuing to hold their interests in the JT - Does NOT destroy it when the JTs act in concurrence A mortgage in a title theory state Lien theory state - NO severance Title theory state - there IS severance Note: If no indication…assume lien theory state A contract of sale Doctrine of Equitable Conversion means severance occurs when a K of sale is signed Destruction of a Joint Tenancy Severance 1 2 1 - 2 - 3 - 4 Tenancies-inCommon 1 2 A creditor's sale of the interest in the JT A creditor's judgment lien is NOT enough…there must be an actual judicial sale Two characteristics: Right to Partition NO right of Survivorship Notes: All tenants in common must have equal rights of possession TIC is the default tenancy Possession - each co-tenant has the right to possess all the property consistent with the other co-tenants' right to also possess it all Accounting Rights - Where a co-tenant must account to another for a share of the profits the co-tenant wrongfully received Getting an accounting means getting a share of the profits from a co-tenant Allocating Rights & 1 Duties Between CoTenants 2 - R One co-tenant does NOT have to account to another co-tenant for a share of the profits Exceptions to the general rule where an accounting is required: Share Agreement Ouster of one co-tenant Lease of the property by co-tenant to a 3rd party Depletion of natural resources Non-Freehold (Landlord / Tenant) Estates Tenancy for Years Periodic Tenancy Tenancy at Will Tenancy at Sufferance ANY estate measured by a fixed or specific period of time…no matter how short (does NOT have to be for years) Page 53 8bffa6b5-6615-433c-b199-f672f3b1636f.xls S O L D 4 types of NonFreehold Estates 1 2 3 4 - Tenancy for Years Real Property Periodic Tenancy Any tenancy for over one year must be in writing Key word is repeating - an ongoing, continuing, repetitive estate, until one party gives valid notice (e.g. month-to-month, week-to-week, year-to-year) Three ways to create: Express agreement Implication (where lease is silent as to duration ) Note: if lease does not specify how long it is to last, then it is presumed to be a periodic tenancy measured by the rent payment 1 2 3 Termination of a Periodic Tenancy Operation of Law 2 situations: a. Oral lease violating the statute of frauds - acceptance of rent by LL creates a periodic tenancy by operation of law, even though the lease itself violates the SOF b. Hold-Over Tenant - if the tenant send the LL a check for another period's rent, and the LL accepts it, there is a new periodic tenancy by operation of law - Occurs by giving proper notice 2 requirements for proper notice: Time (equal to the period UNLESS year-to-year…then 6 months notice required) The right effective day of termination (must be the last day of the period) Either party can terminate at any time…without notice 5 ways to terminate: Death of either party Waste by the tenant Assignment by the tenant Transfer of title by landlord Lease by landlord to someone else At the LL's option, he can either Hold tenant as a wrongdoing trespasser and sue to throw tenant off the property and recover damages, OR Impose a new periodic tenancy on tenant If the LL elects to impose a new periodic tenancy on tenant: If residential - the new period will always be month-to-month If commercial - the new period is determined as follows: a. if the old expired tenancy was for less than a year, new tenancy is the same as the old tenancy b. if the old tenancy was for a year or more, the new tenancy is year-to-year LL cannot impose a new tenancy on a holdover tenant if it is not reasonable Raised Rent Situation - if LL tells tenant before expiration of lease, and tenant holds over after expiration, LL can impose the new periodic tenancy on the tenant at the higher rent Duties of LL and Tenant If lease is SILENT, T must (1) pay rent and (2) not commit waste If lease says T must repair and maintain - T is liable for ALL damage to the ppty, regardless of cause ( except where the LL caused damage). This includes ordinary wear and tear unless specifically excluded. So if the house is burned down by arson or lightening --> T must repair If T fails to pay rent - LL can sue BOTH for damages and to throw T off ppty If T unjustifiably abandons ppty - LL has 2 choices: Page 54 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Tenancy at Will 1 2 - 1 2 3 4 5 Tenancy at Sufferance 1 2 1 2 - Tenant's Duties - LL's Remedies - LL's Remedies 1 2 1 2 Real Property Treat abandonment as an offer of surrender of leasehold and accept the offer by retaking the premises; thus ending T's liability as of that date Re-rent the premises on T's account and hold T liable for any deficiency To give T possession of the premises when lease begins (majority rule) To deliver residential premises in a habitable condition. There is an implied warranty of habitability in RESIDENTIAL ppty. If LL breaches this warranty - T can (1) move out and end the lease or (2) stay and sue for damages Implied covenant of quiet enjoyment - the LL can breach this by: (1) Total eviction (which ends the terminates the lease); (2) By partial eviction (which does not terminate the lease but DOES stop the T's obligation to pay rent. If partial eviction is by person NOT LL - T's rent is apportioned); or (3) by constructive eviction (LL fails to provide a required service and not providing it is a substantial interference T's right to quiet enjoyment (under implied covenenant). T must abandon the ppty within a rzbl time) ASSIGNMENTS AND SUBLEASES Definition - Where T transfers EVERYTHING LL sues T: To determine if successive Ts on a lease are liable to LL you have to see whether there is privity of estate (POE) or privity of K (POK) T is liable to LL if there is either POE or POK POE = exists btw present LL and present T POK = exists where there is an agmt btw the parties or where the assignee "expressly assumes" the obligations under the lease In addition to rent - other covenants will run with the land IF they touch and concern the land --> if the performance of covenant makes the land more valuable or more useful - then it runs with the land, taxes run with the land T sues LL: Can T sue the original LL when the LL sells to a successor? Allowing assignment in a consent for assignment clause lease waives right to withhold permission in the future unless expressly reserved. Original LL continues to be liable to T b/c of POK Successor LL is also liable, provided lease covenant runs with the land AND there is either POK or POE Definition - Where T transfers a PORTION of the lease Sublessee is NOT liable to LL b/c no POE and no POK Valid and enforceable? YES, violation of such a clause makes the attempted transfer VOIDABLE at the option of the LL. If LL does nothing - nothing happens What is the effect of LL's giving permission for an assignment? The clause is WAIVED for ALL TIME, unless L states otherwise at the time of giving permission. Acceptance of rent by LL gives permission for a transfer. CONDEMNATION Does not release T from obligation to pay full rent - BUT T gets an amount = to the rent that will have to be paid over the remainder of the lease for the ppty taken Extinguishes the lease and T is excused from paying rent. T shares in the condemnation award ONLY to the extent that the fair rental value of the lease exceeds the rent due under the lease LL's TORT LIABILITY NO duty of LL to T or to T's invitees for injuries on the premises during the life of lease LL's Duties 3 Assignment - Sublease R Non-Assignment and Non-Sublease Clauses Partial taking Full taking General rule Exceptions C Common areas under LL's control - If injury is in an area subject to LL's control then L is liable if L failed to use rzbl care L Latent defects - L is under a duty to disclose latent defects (defect which T does not know of and a rzbl person in Ts position would not discover) which L either knows or had reason to know of A Assumption of Repairs-If L repairs negligently, he's liable. Page 55 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Real Property P Public use exception - L is liable for injury from defects in the premises if (1) LL must know or should know of major defects; (2) LL must know or should know that T will not fix the defect; and (3) LL must know or should know the public will be using the premises S Short term lease-Furnished dwelling for less than 3 months TENANT'S TORT LIABILITY T is ALWAYS liable to 3d party invitees for negligent failure to correct dangerous General rule conditions on the premises, regardless of whether LL may be contractually liable or not FIXTURES If the attached item became a fixture - chattel CAN NOT be removed either by seller Rule or tenant Look at whether the one doing the installing INTENDED that the item stay with the real To determine fixture ppty as a fixture? If no agmt - look at 1 Degree of attachment 2 General custom with this item - is it the type of thing that sellers or tenants normally take when they leave? 3 Degree of harm to the premises on removal 4 Trade fixtures, which are chattels used in trade or business, are NOT fixtures (always remove) NEVER fixtures Washer/dryer If T can remove the chattel - it must be removed BEFORE the end of the lease When can you If Owner removes chattel - it must be removed BEFORE CLOSING remove chattel? EASEMENTS A non-possessory interest in land involving a right of USE <-- use is the key Definition of Easement Types of Easements 1 Easement appurtenant - when the easement directly benefits the use and enjoyment of a SPECIFIC piece of land - Will be 2 pieces of property: (1) servient estate, the burdened property; and (2) dominant estate, the benefited property 2 Easement in gross - There is no dominant estate (ex: utility easement) There is no implied easement for light or air Ways to create an P Prescription I Implication (Quasi-easement) easement N Necessity G Grant a Either the express grant or a reservation of an easement when land is sold to another Express easement b - MUST comply with the statutes of frauds** and with all deed formalities - MUST be in writing, signed by the holder of the servient estate and executed like a deed (UNLESS the easement is for 1 year or less) 1 Previous use by a common owner, and that use is: U Used C Continuous A Apparent R Reasonably necessary 2 Absolute right of access - the property is landlocked --> No other way off the property - Owner of the servient estate can choose the location of the easement, so long as it is a rznble one Similar to adverse possession, requirements: Use must be adverse to the owner (NO right to use) --> an oral grant of permission will destroy this type of easement Use must be continuous and uninterrupted for the statutory period - Seasonal use may be okay if appropriate circumstances Page 56 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Easement by implication Easement by Prescription 1 2 Prescription Real Property 3 4 1 Use must be either visible and notorious, or with the owner's knowledge Use must be w/out permission Easement appurtenant - goes automatically with the dominant estate, whether mentioned or not in the conveyance, and cannot be transferred separately from the dominant estate Easement in gross - if commercial, can always be transferred; if personal, can NOT be transferred Easement implied from existing use. Prior to the division of a single tract A prior and continuous use was apparent on the servient tenement's part that is reasonably necessary for enjoyment of the dominant tenement the parties intended the use to run with the land. ALWAYS binding on the subsequent holders of servient estates, even if the easement is not in the deed, IF the subsequent holder had NOTICE Terms of the easement control, but if the easement is silent: It is presumed that the easement is PERPETUAL The use presumed is that of rznble development of the dominant estate --> the kind of use that would have been contemplated by the parties WHEN the easement was created Use to benefit8 property not the dominant estate is excessive use Holder MUST keep the easement in repair and can always go to the servient estate to repair it, even if that right is not specifically provided Holder must make rznble restoration of servient estate after repairs Servient estate has NO obligation to make repairs Estoppel - 2 elements: Unity of ownership or merger --> when both the dominant and servient estate come together in the same owner - NEVER revives a) a representation of relinquishment by the holder of the dominant estate b) change of position in RELIANCE by the holder of the servient estate Necessity Terminates-once the necessity that created the easement by necessity ends, so does the easement Destruction of the property Condemnation Release - must comply with SoF and all deed formalities Abandonment - INTENT to abandon must be manifested by taking some PHYSICAL ACT on the property itself that show the intent to abandon '- Mere non-use is NOT abandonment, must take action to abandon Merger of the estates Prescription - owner of the servient estate must stop the use and keep it stopped for Def - limited privilege of use and NOT a property interest - it is only a K right and is revocable at the will of the licensor - The licensor may have to pay K damages for wrongful revocation, but there are no property rights Tickets are always licenses They give no in rem rights, ONLY K rights Can always be revoked, but K damages may be imposed Def - License plus money spent on property furthering the license Anytime an easement is attempted but fails due to the SoF, there is a license If money is spent on the property in furtherance of that oral license, the license becomes irrevocable and is just as good as an easement, and can be enforced under principles of estoppel Def - gives the right to go onto land and take a natural resource away Along with a profit goes an implied easement to go on to the land to get the resource and take it away Use easement rules RESTRICTIVE COVENANTS Page 57 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Transfer of the Easement Benefit 2 Quasi-easement 1 2 3 4 Transfer of the Easement Burden Use of Easements 1 2 Repair of Easements** a b c E N D C R A M P License* Termination of Easement Tickets 1 2 Irrevocable License Profits - Real Property Def - gives the right to restrict someone else's use of their land, 2 types Covenants running with the land at law - if P wants money damages Equitable servitude - if P wants an injunction Intent that it run with the land Covenant at law: Notice to the person against whom enforcement is sought Requirements The covenant must touch and concern the land (must make it more valuable or useful) i.e. - covenant not to compete touches and concerns the land 4 Privity - conveyance of the property from one party to another --> See below to figure out what privity is required Covenant at law: 1 Horizontal privity - ALWAYS refers to the original parties to the covenant - For horizontal privity you must have a conveyance of the property between the original Types of Privity parties 2 Vertical privity - refers to those who subsequently obtain the property subject to the covenant (called the successor in interest) and the original party from whom they got the property - The successor in interest MUST take the FULL estate of the one up the line Covenant at law: 1 Find the successor in interest Process for privity 2a If the successor in interest is the D, then someone is trying to have the BURDEN of the covenant run to that successor 2b If the successor in interest is the P, then that person is trying to have the BENEFIT of the covenant run to them MUST have BOTH horizontal and vertical privity Covenant at law: Ex: A owns 2 lots, sells 1 to B. B then sells to C <-- there is both kinds of privity here Burden running to a successor? Need ONLY vertical privity Covenant at law: Benefit running to a successor? Will need both horizontal and vertical, but you CANNOT have that, so they are Covenant at law: unenforceable at law both parties are successors? Equitable Servitude: 1 Intent that the restriction be enforceable by successors in interest 2 Notice to the subsequent purchaser Requirements 3 The restriction must touch and concern the land - Do NOT need privity Also called Reciprocal Negative Servitudes, Need: Equitable Servitude 1 Intent to create a servitude on ALL the land in the subdivision (may be found in the in subdivisions common building plan) 2 Notice A Actual notice I Inquiry notice - held to know anything a rznble inquiry might have revealed R Record notice where the restriction is in the DIRECT chain of title If a recorded subdivision plan has land marked as city parkland and if that can be Likely Follow up construed as a dedication of the land to the city for a park, then the city can enforce it Question - City Park Restrictive Covenants 1 2 1 2 3 Equitable Servitude: 1 2 Defenses to 3 Enforcement 4 Termination of Restrictive Covenants Unclean hands defense - P did the same thing Acquiescence - let someone else do the same thing Laches - too late Estoppel - P said earlier that he did not mind Can always be done by release or unity of ownership, but look for termination by changed conditions All or nothing - cannot void a restriction based on changed conditions in the area, UNLESS ALL lots in the subdivision are affected ADVERSE POSSESSION Question - when does X's being on the land constitute adverse possession, so that title is obtained, and when it is merely a trespass? Page 58 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Elements for Adverse Possession Elements for Adverse Possession Real Property C Continuous and Exclusive-X must be excluding others from possessing the property during the statutorily required time. H Hostile - being on the property with no right to be there O Open & Notorious-The use must be of the type the owner would make of the land. It must be sufficiently apparent to put the true owner on notice that a trespass is occurring. A Actual - Must actually possess, unless you have constructive adverse possession or lease the land you don't own 1 Owner does not have to know that X is on the land 2 X does not need to think he owns (has a claim of right) the property If X goes on property under a color of title (bad title) to a larger tract, but only actually possesses a PART of the larger unit, constructive AP can give title to the rest of the property if: 1 The amt actually possessed bears a rznble relation to the whole AND 2 The property must be UNITARY - a seamless whole - Leasing qualifies as possessing it for AP purposes - When you lease land you don't own you are running the period for AP a Can occur only when the possessor EXCLUDES the other co-tenants from possession and the statute runs b Exclusion is what starts the clock, not the absence of the other co-tenant 1 Life estate plus future interest - clock does not start to run against the holder of a future interest, until the interest becomes possessory (life tenant dies) - Adverse possessor can only possess what the owner had 2 Fee simple determinable - the happening of the condition starts the clock running 3 Fee simple on a condition subsequent - clock won't start until the grantor exercises the right of entry - Can tack periods of adverse possession, but they must pass DIRECTLY from one adverse possessor to another (NO GAPS) - Can also tack periods of true ownership Being a minor, being insane or being in jail a if the owner is under a disability AT the TIME the AP begins, the AP clock does not start ticking until O is free of that disability b If the disability arises after the AP begins, it's an intervening disability, and is ignored c NO tacking of disabilities NO AP against governmental land Titles acquired by AP are NOT marketable - title may be good, but you have to have the court declare that it is marketable CONVEYANCING Conveyancing is a two-step process: 1 Contract of sale, 2 Deed (at closing) Contract is governed by all regular contract rules, plus these 4: 1 Statute of Frauds - Any signed writing will do, provided it includes: a. A description of the property, b. The names of the parties, c. The price Exception to SOF: Part Performance An oral contract will suffice IF: a. The oral contract is certain and clear, and b. The acts of part performance must clearly prove up a contract Note: Look for a claimant with possession AND (1) paying full purchase price (or close to it), OR (2) erecting improvements Page 59 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 2 things NOT required Constructive Adverse Possession Leasing and Adverse Possession Adverse Possession against Concurrent Owners Future Interests and AP AP: Tacking AP: Disability AP: Other Introduction Contract of Sale - Real Property Legal Effect of the Contract Between Time of Signing K and Closing Four issues: a. Risk of loss - after signing the K of sale, risk of loss is on the buyer UNLESS the seller is at fault b. Death of a Party Before Closing - does NOT effect the terms of the K c. Marketable Title - every land sale K has implied warranty of marketable title (this is not perfect title) - Seller must give the buyer 3 things: i Proof of title ii Title free of encumbrances iii Valid legal title on the day of closing Notes: The existence of a valid option to purchase is an encumbrance making it unmarketable Zoning is NOT an encumbrance UNLESS the property is in violation of the ordinance Violation of a housing or building code is NOT an encumbrance A mortgage on the property is NOT an encumbrance if the mortgage is to be satisfied out of the proceeds of the sale Remedies of buyer if seller's title is unmarketable: Buyer must first give notice to seller and a rzble time to cure…if seller does not cure, then buyer has the following 3 remedies: Rescission Damages Specific performance Note: If Buyer goes to closing and accepts the deed without the problems being cured, then no recourse against the seller based on the K d. Time of Performance Presumption - time is NOT of the essence and the closing may be extended for a rzbl time (2 months is rzbl ) - Note: If the K provides that time is of the essence, then the party who fails to perform on time may not enforce the K Remedies for Breach 1 Damages - measure is the difference between K price and value of the land at time of breach of Sales Contract - Buyer's deposit can be forfeited as liquidated damages as long as it is not more than 10% of sales price 2 Specific Performance "Cha Cha Is My Favorite Dance" -Certain terms -Conditions excused -Irreparable injury -Mutuality -Feasibility of enforcement -Defenses Buyer cannot recover 2 exceptions: Seller must disclose serious defects that seller knows of and are not obvious to buyer 2 - i ii iii Defects on the Property R 1 Page 60 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Defects on the Property Real Property 2 Deed R There is an implied warranty of fitness or merchantability for new homes sold by a builder-seller Once the deed is accepted, the contract for sale merges into the deed and is destroyed 2 requirements for passage of legal title from seller to buyer: Execution Delivery Deed MUST be signed by the seller Description of the land need NOT be very specific (must be able to identify the property) (a minor discrepancy is okay if land can still be identified) A land description by metes and bounds ALWAYS controls over any other form of description Does NOT always mean physical transfer…intent is what matters Recording of the deed raises a presumption of delivery Quitclaim deed - Seller makes no promises regarding title and buyer gets whatever seller owns Any evidence may be used to show seller's intent to deliver deed If grantor dies and still has possession of deed, there is a presumption of NO delivery Execution of Deed 1 2 - Delivery of Deed - 1 - Conditional Delivery Condition is in deed If deed says it will not become effective until death of grantor, this is a valid delivery of a future interest Oral Condition If the condition is made orally at the time of delivery of the deed, disregard the oral condition Making delivery conditional on grantee paying purchase price This is valid IF grantor makes delivery to a 3rd party in escrow with instructions to deliver deed to grantee when condition is satisfied (oral instructions okay) Once deed is given to escrow agent, grantor cannot get the deed back Acceptance of deed by grantee is presumed (unless grantee rejects) No consideration is needed for a deed (unlike the K of sale) Quitclaim deed - Seller makes no promises regarding title and buyer gets whatever seller owns-implied warranties apply until transfer of deed. There are six types of covenants a seller may make and the deeds that go with these covenants are called general warranty deeds 2 - 3 Covenants for Title The 6 covenants are placed into two categories: 1 Present covenants S Covenant of Seisin (seller has title and possession and can convey both) E Covenant against Encumbrances (no easements, restrictive covenants, liens, etc) C Covenant of right to Convey (seller has title and possession and can convey both) Note: buyer can sue immediately on these covenants, but they do NOT run with the land 2 Future Covenants F Covenant of Further assurances (seller promises to perform acts necessary to perfect title) E Covenant for quiet Enjoyment (seller will protect buyer from anyone who later claims title) Page 61 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Real Property W Covenant of Warranty (seller will protect buyer from anyone who later claims title) Note: Not breached immediately, but DOES run with the land and can be enforced by any subsequent purchaser If there is a breach of warranty, damages are limited to purchase price received by warrantor, plus incidental damages Don't fall for an answer that would give plaintiff full recovery If A deeds property to B that A does not own, and then A does later acquire title, then B will get title because A gave an implied covenant that title would be transferred to B BUT, if A transfers to a BFP after getting title, then the original grantee loses and cannot rely on estoppel by deed A deed to a dead person is invalid, although enforcement of the contract of sale can still be had by either the seller or the buyer's estate, and a new deed is made to the buyer's estate RECORDING OF INTERESTS At common law, first in time, first in right Recording acts also protect subsequent mortgages Recording acts do NOT protect judgment creditors Recording a deed is not necessary to make it valid, it is only done to give notice Notice acts Race-Notice acts Pure Race acts Protect subsequent purchasers who are BFPs…those who give value without notice of the earlier transaction Recording is irrelevant If the words "without notice" or "in good faith appear without the words "first recorded" or "recorded first", then it is a notice act Protect subsequent purchasers who are BFPs AND are first to record If the words "first recorded" or "recorded first" appear along with "without notice" or "in good faith," then it is a race-notice act Whoever records first wins Notice is irrelevant If "without notice" or "in good faith" do not appear, then it is a pure race act 2 situations Bargain Basement Sale - where a subsequent purchaser pays an absurdly low price Anything paid out-of-pocket is enough to be considered value Exception - $1.00 is NOT enough An heir, donee or devisee - these persons are not BFP's b/c they give no value Exception: Shelter Rule - anyone (even heirs, donees, and devisees) can shelter under the rights of a BFP and receive the priority level they enjoyed, even with notice of other claim. "Without Notice" Three types of notice: A Actual Notice - if subsequent purchaser actually knew about prior unrecorded conveyance, that person loses I Inquiry Notice - two situations: a. If a reading of the deeds discloses an unrecorded transaction, the subsequent purchaser must check it out Damages for Breach R of Covenant Estoppel by Deed - Deed to a Dead Person R Types of Recording 1 2 Acts 3 Notice Acts Introduction Race-Notice Acts 1 2 Pure Race Acts "for value" Page 62 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Real Property b. Where subsequent purchaser fails to go out and examine the land and an examination would have shown someone on the land under a prior unrecorded right Subsequent purchaser must make inquiry of unexplained possessions or uses R Record Notice - constructive notice that arises from the record…must be recorded in the chain of title - searcher of records NOT responsible for locating anything recorded before getting title or after transferring title (wild deeds) SECURITY INTERESTS = #1 TOPIC ON BAR A device used to secure a loan on real ppty 1 Mortgage - given by a debtor (mortgagor) to a creditor (mortgagee). Sheriff sells the land at a court-ordered foreclosure sale if mortgage isn't paid - There are 2 situations where we treat the instrument as a mortgage a Absolute deed - with a separate promise of reconveyance situation b Sale/leaseback with option to re-purchase 2 Deed of Trust - given by debtor to a 3P trustee who holds it until the loan is paid off 3 Consequences of 1 having a mortgage OR deed of trust If the loan isn't paid - then trustee may EITHER get the court to order a sale OR the trustee may sell ppty on trustee's own at a public auction Installment Land K - debtor signs a K promising to make pmt and seller keeps title until loan is paid off Equity of redemption - at any time up to the fc sale - debtor can redeem the ppty. Normally all debtor has to pay is the amount in arrears, BUT if a mortgage has an acceleration clause - debtor has to pay off ENTIRE balance Right of redemption can't be waived in the mortgage or DOT - BUT it can be done later if separate consideration given . (An attempt to waive the right of redemption in the SI is known as "clogging the equity of redemption" and is prohibited Foreclosure must be by public auction sale If there are multiple mortgages, priorities are first in time, first in right Mortgage priorities may be changed by K Purchase money mortgages are given priority over other mortgages executed at the same time, even if the other mortgage recorded first Sellers with PMM win over Banks with PMM ep Foreclosure wipes out all junior interests (including easements or leases) but does NOT wipe out senior interests. Protections to holders of junior interests - they have the right to pay off any mortgage being foreclosed in order to keep their junior interests from being wiped out, and thus they are necessary parties to any fc, and if they are NOT made a party to a fc - then their interests are NOT wiped out by it Senior interests do NOT get paid off when a later mortgage is fc; they keep right on going. Purchaser at fc sale takes ppty subject to senior interests Use proceeds of fc sale in this order Pay the cost of the fc, including expenses and attorney fees Pay the mortgage that was fc, including accrued interest Pay off junior interests, in order Anything left goes to mortgagor If mortgage is fc and there is not enough money to pay off the mortgage - let mortgagee SUE debtor for balance due Look for a forfeiture clause --> if debtor misses a pmt, seller can cancel the K, keep all the money paid to date, and get the ppty back Sellers have to give buyers detailed notice of a prospective forfeiture Page 63 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Definition 3 Kinds of SI 2 3 4 - 5 a b c d 6 Consequences of having an Installment Land K 1 Consequences of having an Installment Land K 2 1 2 - Real Property Buyers have a statutory 60 day period to cure the default Mortgagor can transfer TITLE to ppty and mortgage just tags along and transferee takes SUBJECT to the mortgage Mortgagor continues to be personally liable on the note Unless grantee specifically assumes mortgage, grantee is NOT personally liable on it BUT mortgage still has to be paid or mortgagee will foreclose After mortgagor transfers title to one who "assumes" the mortgage - mortgagor continues to be personally liable on the note as a surety. Mortgagee can freely transfer the note and the mortgage tags along with the note HiDC - A holder in due course is NOT bound by pmts to an old mortgage, not even if the mortgagor knew NOTHING of the transfer HIDC requirements Delivered Indorsed Negotiable Good faith HiDC not subject to personal defenses: UFLEW-Unconscionability, Fraud in the factum, Lack of consideration, Estoppel, Waiver HiDC is subject to real defenses: MAD FIFI4; Material Alteration, Duress, Fraud in the execution, Incapacity, Illegality, Infancy, Insolvency. Due on sale clauses (if mortgagor transfers without the mortgagee's consent, the FULL AMOUNT of the loan is immediately due and payable) ARE enforceable If a fixture filing is NOT made within 20 days of attachment - then the SI in the chattel is subordinate to the earlier mortgage on the real ppty SPECIAL RIGHTS Lateral support - support from the sides. A landowner has the right to land supported by the adjoining landowners, and strict liability results if land is not supported. Adjacent landowner is strictly liable for support of adjacent LAND and IMPROVEMENTS if land would have collapsed anyways - even WITHOUT those buildings on it Subjacent support - support of the surface from the bottom. Strict liability results if surface is not supported. Situation arises when holder of mineral rights removes the minerals and the surface collapses Holder of mineral right is strictly liable for failure to support the surface of the land Watch out: Buildings built AFTER mineral rights were severed from surface rights get NO strict liability protection Watch out: If excavator was negligent --> P can sue under ordinary tort principles Rivers and Lakes Riparian rights - Refers to those whose property borders on a lake or stream. The owner can use all the water needed for DOMESTIC purposes. If NON-DOMESTIC, the owner is limited to rzbl use. Reasonable Use: Riparians share the right of reasonable use. Reasonable Factors: "CAPPED" Conduct; Alteration of flow; Purpose; Pollution; Extent of use; Destination of water taken Natural Flow Approach - A riparian owner's use resulting in substantial or material dimunition of the water's quantitity, quality, or velocity is enjoinable. Natural v. Artificial use: Under either theory, natural use (consumption, gardening ) prevail over artificial uses (irrigation, manufacturing ) Prior appropriation - first in time takes - ANYONE who makes beneficial use of water has the right to continue to use it, and that right is protected from those who come later, as long as use continues Ground Water Transfers of SI D I N G Fixture Filing Right of Support 1 2 R Water Rights 1 a. b. 2 Page 64 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Real Property A landowner is entitled to rzbl use. Landowner must use it on the ppty and not export it elsewhere. 4 Theories: Absolute ownership, Reasonable use, Correlative Rights (CA), and Appropriative rights Surface Water Natural Flow Approach - courts allow rzbl steps to deal with flood water. Drainage pipes or ditches to divert the flood water are okay. Reasonable Use: Balance the utility of the use against the gravity of the harm. Common Enemy Approach - you can do anything with floodwater, rzbl or not Where streams are boundary lines, abutting owners own 1/2 the stream. - Water Boundary - Page 65 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Torts 4 Major Testing Areas 1 2 3 4 1 2 P A W 3 Mnemonic Intent Introduction Intentional Torts (assault, battery, conversion, false imprisonment, IIED, trespass to land, trespass to chattel) Strict Liability (products, abnormally dangerous activity, wild animals) Negligence Nuisance/Privacy/Defamation/Misrepresentation Do the facts support an intentional tort? Can Δ sue in strict liability? - PAW (Product; Abnormally Dangerous Activity; Wild Animal) Product Liability Abnormally dangerous activity Wild Animal/domesticated animal which Δ knew had dangerous propensities If not, then the theory is negligence Intentional Torts ABCFITT: Assault, Battery, Conversion, False imprisonment, IIED, Trespass to land, and Trespass to Chattel. Desire, purpose, substantial certainty There is no such thing as an attempted intentional tort Actual intent is required for all intentional torts EXCEPT IIED Δ must have made a voluntary act Δ must have intended the consequences - act with an actual desire or substantial certainty (negligence is NEVER enough) - Intent can be proven by transferred intent from tort to tort (Ex: you intend to commit one tort but you actually commit another - then you are liable for the tort actually committed ) OR person to person Motive is NOT relevant Mentally incompetent adults and children can be held liable for intentional torts Approach General rules a b c d Assault 1 2 3 Battery 4 1 2 3 4 e Causation: Δ act must have caused OR been a substantial factor in causing the result - need factual and legal causation - an answer that just says "but for" is probably wrong f Actual damages are NOT needed - punitive damages may be available g Δ is liable for ALL harm caused - even if not foreseeable п's rzbl apprehension - "expectation of" - must be AWARE as the п - a rznble person must have been placed in apprehension - unless Δ is aware of п's extra sensitivity - a 3P has NO CoA here Of imminent harmful or offensive conduct to himself - includes being punched, shot, improper sexual touching, or spitting . . . - words alone are NOT enough - can't be the fear of a future contact Δ's intent (to cause the apprehension) - there is NO need for actual contact - Δ must have actual or apparent ability to cause the harmful or offensive contact Causation - Δ act caused or was a substantial factor in causing result Δ's harmful or offensive contact - п does NOT need to be aware that contact was made with him With п (п's body or something attached to it) - also counts if you set in motion something that causes contact (i.e. - poison) Δ's intent - intent to commit assault will satisfy intent to commit battery when the contact is made accidentally Causation - Δ's act caused or was a substantial factor in causing result Page 66 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Torts False Imprisonment - 1 2 Δ's act Confined or restrained п - п must be aware of the confinement, unless п is incapable of awareness and is actually harmed 3 To a bounded area 4 Using physical barriers, physical force, or threats of immediate physical force 5 Δ's act was voluntary and with the intent to confine or restrain - Motive does NOT matter - Shopkeeper's privilege - Rzbly believes theft occurred - may make rzbl detention in a rzbl manner for a rzbl period of time - Length of imprisonment is NOT relevant to prove false imprisonment - Humiliation and mental suffering are actionable for false imprisonment - If п has a rznble means of escape and knows it this is a good defense - Nominal and punitive damages may be available Reasonable complaint leading to arrest will not lie for FI, even if not withdrawn upon - knowledge of falsity. Note: Keeping someone OUT of a place is NOT false imprisonment nor is a future threat of false imprisonment 1 Δ's intentional or reckless (substantial certainty) IIED 2 Extreme and outrageous behavior - words alone or a threat of future outrageous conduct may prove the tort 3 Causes п severe emotional distress (actual damages) - means nominal damages are NOT enough - п's special sensitivity is NOT considered UNLESS Δ knows of it Note: The identity of the п and Δ are relevant in determining outrageous conduct. Transferred intent does NOT apply. Physical injury is NOT required for IIED. This is the difference btw IIED and NIED. Relative: Bodily harm to п not required IIED directed to 3P Non-relative: Bodily harm requied - Either way, п must be known to be present by Δ Trespass to Land 1 Δ's voluntary and intentional 2 Physical invasion - just the intent to go on the land, not to actually trespass 3 Of owner or tenant's land (including airspace) - Nominal damages allowed - Δ GF belief that the land belongs to Δ is NOT a defense. - Note: If Δ enters п's land negligently or recklessly - Δ is not liable for the trespass unless they caused damage to п's land. If Δ entered п's land accidentally - there is no liability for trespass if non-negligent and unintentional - Note: If Δ enters п's land intentionally - no damage is required and Δ is still liable. Thus, nominal damages are available - Note: Trespass requires entry of something TANGIBLE (light, noise, vibration are NOT trespass BUT particles ARE trespass) - **ON MBE - IF FACTS ARE AMBIGUOUS, ASSUME INTENTIONAL Conversion - intentional destruction or wrongful possession for a significant period of Conversion time of another's personal property. Remedies include damages (FMV at the time of the conversion) or replevin MBE: Borrowing w/o permission and damaging results in conversion Trespass to chattel - less harmful and/or short-term wrongful possession of another's Trespass to Chattel personal property. Requires actual damages, usually DMV or COR - usually reduction in value of loss of use Note: Δ's GF belief that the chattel belongs to Δ is NOT a defense Intentional Tort Defenses Mnemonic DARNCOPS (Discipline, Authority/arrest, Recapture, Necessity, Consent, Others, Property, Self) Persons in charge of children are permitted to use rzbl discipline Discipline Page 67 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Torts Authority Recapture of Chattels 1 2 3 Authority of law (arrest) A person may recapture property wrongfully taken from him. Rzbl non-deadly force to regain possession of chattel is allowed if: original taking was illegal in fresh pursuit and request for return is useless or dangerous When chattel is located on land of wrongdoer - owner of chattel is absolutely privileged (i.e. no tort liability for damage to the property) to enter wrongdoer's land and reclaim the chattel in a rzbl manner Defense to trespass to land, trespass to chattel, and conversion Public necessity - if Δ's acts, although a tort, avoided greater injury to the public there is no liability Private necessity - if Δ's acts, although a tort, avoided a greater injury to a small # of persons - Δ is only liable for the actual damages caused Defense to all torts Consent based on duress is invalid Can be express or implied - implied consent includes participating in activities known to include physical contact and in emergency situations Consent based on п's mistake is invalid if Δ was aware of п's mistake If express consent was based on a misrep going to the essence of the touching, consent is not a valid defense - most misreps will go to collateral matters on the bar Consent is valid if Δ was rzbl in believing п consented - even if Δ wrong If Δ exceeds the scope of valid consent, the consent becomes invalid Can't consent to DEADLY force п must have the capacity to understand the consequences of the consent --> children, mentally incompetent and drunks lack capacity to consent Rzbl force may be used to protect a 3d person - even a stranger Even if Δ was mistaken as to right of self defense of a 3P - defense is valid as long as there was a rznble belief that the 3P had the right of self-defense Rzbl non-deadly force may be used - no retaliation Must be rzbl (even if Δ was wrong about the need for self-defense) - Δ is entitled to use rznble force to prevent an intentional tort that Δ rznbly believes is about to be committed against him No duty to retreat generally Does not include retaliation If a bystander is injured during valid, rzbl self defense - Δ is NOT liable Defamation Slander: purely spoken defamation Libel: written - stmts on TV, oral repetitions of libel and written repetitions of a spoken stmts are all viewed as libel Must have a defamatory stmt of fact, i.e. lowers п's reputation in the community (respectable society) The stmt must CONCERN the п --> rznble reader or listener must understand the stmt to concern the п Colloquium - The pleading of extrinsic facts to prove the stmt concerns п - a stmt of opinion just is NOT enough - whether a stmt is defamatory is based on whether a rznble person would find the stmt defamatory, NOT п's subjective reaction Facially defamatory - on its face it is defamatory Not facially defamatory - need to use inducement and innuendo to prove the defamatory nature of the stmt Inducement: The pleading of additional facts to prove defamatory nature Page 68 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Necessity Consent - - Others-Defense of Property-Defense of Self-Defense of a b c d Slander vs. Libel - Rule Defamatory Stmts 1 2 a Defamatory Stmts Torts Publication b Innuendo: Plea of defamatory meaning of the statement The defamatory stmt must be communicated to a 3P - if Δ only tells п, there is NO publication, negligent publication is enough Note: A person who repeats a defamatory stmt is also liable for defamation --> this could increase the liability of the original defamer if republication was intended or rznbly foreseeable If the group is defamed - an individual member of the group can only bring an individual defamation action if the group is small At c/l - if the stmt was defamatory, damages were presumed. п did not have to prove actual damages Exceptions-"CLUB" C Crime L Loathsome disease U Unchastity B Business NEVER a right answer that a writing requires special damages 1 Under c/l - truth is an affirmative defense - and an ABSOLUTE defense 2 Can't defame a dead person 3 Consent is a defense to defamation CONSTITUTIONAL RULES When (1) the п is a public person or (2) when the matter involves an issue of public concern - we DON'T use c/l rules Include gov't officials and celebrities Must prove by c/c evidence that the stmt was false, and that the Δ acted with malice (knew the stmt was false or acted with reckless disregard of its truth) Must prove c/c evidence of falsity and malice in only those defamation cases involving the particular public controversy in which they have voluntarily assumed a public role Must prove falsity and that Δ acted at least negligently. Must prove malice to collect punitive damages In a matter not of public concern, need NOT prove falsity, malice or negligence PRIVILEGES There is NO defamation liability for stmts made by: 1 1 spouse to another; 2 stmts made in a judicial proceeding; 3 stmt made by executive branch officials; 4 and stmts made by legislators in hearings or floor debates/extends to assistants who help the legislator prepare 1 Employers and professors giving recommendations 2 Persons reporting crimes 3 Credit bureau reports 1 Δ acted with malice OR 2 Engaged in excessive publication 3 If the stmt is unrelated to the policy of the qualified privilege Privacy Torts A Appropriation of п's pic or name for commercial advantage Fl False Light: False attribution of a belief or action which a rzbl person would find objectionable that is publicized in a public way. Malice must be shown for public figure. I Intrusion into seclusion: Intrusion must be into something private and be highly offensive to a rznble person - no communication to a 3P is needed P Public disclosure of TRUE private facts about п that are not of legitimate public interest - must be facts that a rznble person would not want to be made public Only actual consent - not rzbl belief of consent Page 69 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Group defamation Presumed damages Defenses Constitutional Limits Public пs Limited purpose public пs Private п/Public Controversy Private Person Absolute privilege Qualified privilege If Δ has a qualified privilege - Δ is liable if Four Branches "AFLIP" Defense Torts Fraudulent Misrepresentation S C R I M Negligent Misrepresentation 1 2 3 4 Misrepresentation Scienter-Knowing or reckless A misrepresentation of material fact Causation-actual reliance Reasonable reliance/damages Intent Misrepresentation of a material fact Opinions and silence can't be the basis of deceit UNLESS they are by an expert, there is a fiduciary duty, or a duty to correct earlier misinformation Δ must have the intent to deceive OR reckless disregard of the truth п must prove rznble reliance and ACTUAL damages Generally, NO transferred intent - only proper п's are those Δ intends to deceive or could rznbly foresee would rely on the stmt Misrepresentation of fact Made by Δ As part of Δ's business or profession As a result of Δ's negligence Note: Only persons Δ knew would rely on Δs stmt are proper пs. п must prove rzbl reliance and actual damages Tortious Interference With Contract п had a valid K With 3d party Δ knew about the K Δ intentionally interfered with the K Actual damages Note: Interference with a K at will or a prospective K is only actionable if Δ used wrongful tactics (violence) NEGLIGENCE Everyone has a duty not to affirmatively act in a manner to create an unrzbl risk of harm to others There is NO duty to take precautions against events that are NOT rzbly f/s A duty is only owed to f/s пs Rescuers are f/s as long as the rescue is rzbl (can't break the law while you're trying to rescue someone) There is generally NO duty to aid someone in need of help Exceptions: A special relationship or if someone causes another's injury or places another in peril Statute requires Contract promises Relationship requires Assumption of duty undertaken Peril caused by Δ A good Samaritan to begins to help must complete the help with rzbl care - a doctor has NO duty to come to the aid of an injured person There is no duty to control a 3P (except: parents, ER/EE, statute) Objective standard of rznble care - ordinary prudent person Consider greater knowledge, experience, and physical disabilities, but NOT those with less experience or knowledge Children --> what is rzbl for someone of like age, knowledge, education, intelligence, and experience. If engaged in an adult activity - use adult standard Professionals --> what is rzbl for avg member of the profession in same/similar community Specialist --> extra knowledge is considered, national standard Guest statutes - driver is liable to a nonpaying rider for gross negligence or reckless conduct (must be told there is a guest statute and make sure it is the guest suing the driver) LAND OWNER LIABILITY Page 70 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Elements 1 2 3 4 5 General Rules 1 2 3 4 5 S C R A P 6 7 R Standard of Care Torts Definitions Trespasser - someone on Δ's land without permission (undiscovered, discovered, anticipated ) Licensee - social guest or a person on Δ's ppty for her own economic benefit (police and firefighters too ) Business Invitee - on Δ's ppty for Δ's economic benefit (customer, repair person ) Public Invitee - on Δ's ppty for public purpose (airport, church, museum ) Was п injured while ON Δ land or OFF Δ land? Was п injured by an artificial condition, a natural condition, OR an activity? By NATURAL condition --> NO duty owed except if п was injured by a decaying tree next to sidewalk in a city By an ARTIFICIAL condition --> NO duty owed except if п injured by dangerous condition on EDGE of ppty By an ACTIVITY --> duty of rzbl care owed to п Undiscovered trespasser - NO duty owed to п Discovered or anticipated trespasser - No duty if п was injured by natural condition or non-dangerous artificial condition. Duty to warn or make safe if injured by highly dangerous artificial condition. Duty of rzbl care if injured by activity Licensee - if injured by activity -duty of rzbl care. If injured by condition - duty to warn or make safe non obvious dangerous conditions of which Δ knows. NO DUTY TO INSPECT. Invitees - if injured by an activity - duty of rzbl care. If injured by condition - duty to warn or make safe-non obvious dangerous conditions of which Δ knows AND duty to INSPECT. A landowner only owes invitee a duty only in those areas where entry was authorized. Dangerous artificial condition - the artificial condition does NOT need to be the motive for the child's trespass Δ knew or should have known that children are likely to come by the artificial condition п was incapable of appreciating the danger The expense of making the condition safe is slight compared to the danger Owner is required to use rzbl care and will be held liable for unrzbl risk to those on highway Negligence - Breach of Duty п must show what happened ordinarily only occurs if someone was negligent, and that more probable than not, it was this Δ who committed the negligent act b/c of this Δ's exclusive control of the injury producing instrumentality - Look for RIL in any accident where not told exactly what happened. Note: п will avoid a directed verdict ONLY (no presumptions, no shifting of risk) Evidence of custom is admissible as evidence of breach. - will NOT lead to a directed verdict b/c the jury could find that the custom itself is unrznble Need expert testimony --> what is the custom and whether the Δ violated it in the expert's opinion Violation of statute was unexcused (balance harm of complying vs. harm if violated) - Δ compliance with the statue is relevant, but not conclusive, Rznble person may have to go beyond the statute's requirements Type of harm must be same type of harm statute was aimed at preventing - excuse - more harm by not violating the statute п must be a member of class of persons the statute intended to protect Negligence - Causation Use but for test when there is ONE tortfeasor Use substantial factor test when there is MORE than one tortfeasor If 2 Δs are acting jointly - all Δ are actual cause of entire injury 2 step Approach п injured OFF Δ's land п injured ON Δ's land Attractive Nuisance 1 2 3 4 Adjacent Public Highway Res Ipsa Custom Negligence Per Se 1 2 3 Actual Causation - Page 71 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Actual Causation Torts If 2 Δs are NOT acting jointly, if negligence of either would have caused entire injury each is actual cause of entire injury If 2 Δs are NOT acting jointly, and the negligence of both combines to cause greater injury than what would have resulted from the separate negligence of each - Δ is actual cause of entire injury If 2 Δs are NOT acting jointly, and п is injured by negligence on 1 of them and it is impossible to determine which one - BOTH are viewed as actual cause unless 1 Δ can prove otherwise (burden on Δ) The harm must have been rznbly f/s to Δ at time of negligent act - the TYPE of harm must be f/s, not the extend of the harm --> "egg shell P" Proximate cause does NOT extend to economic harm suffered by 3Ps 3P's conduct or an event occurring subsequent to Δ's tort which causes additional harm to п. If f/s (med mal, negligence of rescuers, negligent acts of 3d persons, weather changes ) --> Δ is liable. If NOT f/s (crimes (may be f/s), intentional torts )) -> Δ is NOT liable Negligence - Damages Actual damages are required Pain and suffering (past and future) --> need an expert for future P&S Diminished earning capacity Medical expenses (past and future) --> need an expert Loss of consortium (married people only) Majority - п MUST HAVE some physical injury and п must have been within zone of danger Modern approach - covers п who was present at scene who views close family member being impacted Negligence - Defenses п must subjectively/actually know and understand risk AND voluntarily accept it - if this is true the п gets NOTHING in AoR JX Where п's unrzbl conduct is actual and prox cause of п's actual damages. In contrib negligence J --> п collects NOTHING Last clear chance doctrine - trumps contrib negligent - if Δ had not acted subsequent to п's contrib negligent - п would not have been injured and п CAN collect (will be the WRONG answer) Majority view today Ps recovery is reduced by % of fault attributed to п - this means the assumption of risk just reduces the recover and does NOT bar it ** ON MBE USE PURE COMPARATIVE FAULT UNLESS Q SAYS OTHERWISE - Partial comparative negligence - if п is > 50% negligent he gets nothing No last clear chance doctrine Strict Liability Abnormally dangerous activities (crop dusting, pesticides, nuclear power, blasting) - Proximate Cause Intervening Cause Rule R Types of Damages 1 2 3 4 Emotional distress R Assumption of Risk Contributory negligence (minority view) Comparative negligent - Types 1 Defenses Approach a Factors to look at: (1) high risk of death or serious injury; (2) activity cannot be made completely safe; (3) not a common activity; (4) degree of danger> benefit to community 2 Wild animals (can NEVER be domesticated) - Assumption of risk Products Liability P.S. I Should Never Want Rain. P Product liability umbrella statement S Show defect I Intentional Tort S Strict Liability N Negligence W Warranties R Representation Page 72 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Torts Product Liability Umbrella Statement Product liability refers to the liability of a supplier of a defective product to someone injured by the product. There are five theories of liability under which a P may pursue: 1) intent; 2) negligence; 3) strict liability; 4) IWoM & IWoF4aPP; and 5) representation theories (express warranty and misrepresentation) R To find liability under any product liability theory, п must show 1) a defect, and 2) existence of the defect when the product left Δ's control. Defect can be shown in one (or more) of three ways D Design Defect-All products of a line are the same and have dangerous propensity - Consumer expectation Test: dangerous beyond the expectations of an ordinary consumer - Feasible Alternative Test: a less dangerous alternative is economically feasible I Inadequate warning-Manufacturer failed to give adequate warnings as to the risks involved in using the product. The danger must not be apparent. M Manufacturing Defect-The product emerged from manufacturing different and more dangerous than the products made properly. Δ will be liable to anyone injured by an unsafe product if Δ intended the consequences or knew that they were substantially certain to occur. 1 Defect (design, mfg, warning, instruction) 2 Unrzbly dangerous (beyond what an ordinary consumer would contemplate or a less dangerous alternative is economically feasible) 3 Causation (look for a substantial change since time product left Δ) 4 Δ is a commercial seller of product - includes the component part make; the manufacturer; the seller but NOT the garage sale or loan from a neighbor 5 п is foreseeable (includes purchasers and bystanders ) - foreseeable unintended use is NOT a defense 6 Physical damage to a person or ppty (other than the product) - more than economic loss - Defenses - Assumption of risk NOT Contributory Negligence - no S/L if there are adequate warnings and instructions - no need for privity - Does NOT apply to services - No strict liability for unavoidably unsafe products (knives, chemo drugs) - Res Ipsa like inference allowed where accidents like the one iquestion don't happen in the absence of a defect and only Δ could have introduced the defect. A seller is NOT required to warn about risk which is only dangerous when consumed - in excessive quantity or over a long period of time IF risk is generally known to the public (alcohol) Same law as negligence but concerns a product - negligent failure to discover a defect is NOT a superseding cause - privity is NOT required, but п must be rznbly f/x There are two warranties implied in every sale of goods - Merchantability: Goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used. - Fitness for a particular purpose: Arises when the S knows or has reason to know the particular purpose for which the goods are required and that the B is relying on the S's skill and judgment in selecting the goods. Standing-Must be a buyer, family member, household member, or guest with personal injuries Proof of fault is not required Causation-handled in same manner as ordinary negligence (Supra above) Damages-personal injury, property damages, and purely economic loss are recoverable. Defenses-Assumption of the risk and CN (to same extent as in S/L cases) and, under UCC, failure to give timely notice of breach is a defense. Page 73 8bffa6b5-6615-433c-b199-f672f3b1636f.xls Show defect Intent Strict Liability Negligent Warranties Torts Effect of disclaimer-Disclaimers are rejected in PI cases but upheld for economic loss. Representations R 1 A Δ will be liable when a product does not live up to some affirmative representation Express warranty Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. - Consumers, users, and bystanders can sue - Fault need not be shown, п need only show that the product failed to live up to its warranty - Causation, damages and defenses same as implied warranties - Disclaimers-Only allowed in the unlikely event that it is consistent with the warranty Misrepresentation of fact An S will be liable for misrepresentation of facts concerning a product where: - The statement was material-(not mere puffery) - The S intended to induce reliance by the B in a particular transaction - The B actually relied on the representation - Causation and damages: Actual cause is shown by reliance. Prox. cause and damages are the same as for S/L. - Defenses: Assumption of the risk is NOT a defense if п is entitled to rel on the representation. CN is the same as in S/L, unless D committed intentional misrepresentation. Nuisance Δ's substantial and unreasonable interference - balance harm against social utility - interference must be substantial to the average person W п's use and enjoyment Of ppty Actual harm - must be substantial MAJOR interference with use and enjoyment - tangible harm; decline in mkt value; personal discomfort -defense is that п is hypersensitive Equitable + Damages (DMV) Dust, smoke, odor, noise, light, brothel If п comes to the nuisance - he can still sue. When health, safety, or property rights of general public are effected Private п must prove unique injury apart from that of the public to prevail Fears and feelings common to members of the community ARE to be considered in determining nuisance - Fear of contagion MAY make it a nuisance even if there is no basis in science Vicarious Liability ER/EE relationship (not independent contractor - use right to control test) Course and scope - What, when, where and why --> doing what he is supposed to; at the proper time; in the proper place; b/c he was told to - commuting is NOT w/in course and scope Negligent hiring does NOT fall under here Applies to intentional and negligent torts No VL for I/C UNLESS inherently dangerous activity or non delegable duty Servant - right to control; paid salaries; not highly skilled; don't have own business; use boss' tools; are long term workers I/C - no right to control; have own businesses; more skill; get paid by the job; have own tools; short term workers Non-delegable duties-1) peculiar risk of physical harm, 2) public place, 3) Δ is a landowner who owes a duty to keep premises reasonably safe. Multiple Tortfeasors Page 74 8bffa6b5-6615-433c-b199-f672f3b1636f.xls 2 Private Nuisance 1 2 3 4 Remedies Examples Note Public nuisance - Elements 1 2 Servant vs. Independent Contractor Torts General rule Contribution Indemnification Wrongful death Survival action Spouse Parent/child Charity Federal gov't State gov't Municipal gov't R J/S liability If Δ1 paid more than her pro rata share to п - Δ1 is entitled to contribution from Δ2 to equalize pmt based on # of tortfeasors When Δ seeks total reimbursement from another Deceased Tort Victim Damages for loss of support, services, companionship, and consortium. Damages are paid to surviving family Damages suffered btw time of tort and death. Damages paid to estate Immunities none none none FTCA waives for negligence can waive (TTCA) Immune while engaged in gov't functions but NOT proprietary ones (trash collection, parking lots) Page 75 8bffa6b5-6615-433c-b199-f672f3b1636f.xls