Law School Mastery 2

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1

cause

if you ________ the harm, you have an affirmative duty to mitigate

2

helping

there is a duty to finish _____ someone if you start (affirmative duty)

3

nuisance tests

go over all 5 possible ____________ ________
1. gravity of harm v. utility of conduct
2. serious conduct
3.harm is severe and greater than plaintiff should bear
4. physical invasion
5. community norms

4

nuisance

if there is an economic deprivation taking, you have to check if it is a ___________.

5

139

if you rely on a contract to your detriment, look at restatement ___ (2d)

6

at-will

Exceptions to __-_____ employment
1. public policy
2. handbook
3. implied in law/ good faith

7

choice

The importance of _________ leads us to question whether contracts with children or mentally ill people are enforceable

8

Ortelere v. teachers retirement board

Ortelere took leave of absence because she had a nervous breakdown. She changed her retirement plan while she was mentally ill. A psychiatrist testified that she was incapable of making voluntary rationale decision because of the condition she was suffering from. She has originally elected a plan that that paid less but gave more to beneficiary but while suffering from mental condition she changed plan to one that paid more during life but no benefits after death. After she passed away, her husband brought action against the school. The court held that the since the school board had knowledge of the condition because she was on a leave of absence and was examined by a doctor provided by the school the changes made were void. The ruled in favor of the husband
(res.15)

9

yes

can a 17-year-old disaffirm a contract based on age?

10

licensee

A person who enters the land of another with the owner's express or implied consent, but it's for his own benefit rather than the benefit of the owner (sales person).

11

invitee

One who is expressly or impliedly invited onto the property of another in order to further the party's economic interest. They enter the land with the express or implied consent of the land owner.

12

trespasser

An individual who intentionally goes onto the property of another without permission or any legal right to do so.

13

rules for emotional distress

DiVictim:
1. physical impact
2. physical manifestation-- weight loss, etc.
assume reasonable loss
diagnosis of depression
-- diagnosis of very specific mental illness (some jurisdictions)
---------
Observer
3. dillon
--close to accident
--closely related?
--no link
4. Thing rule
- abnormal response
-closely related
and
-present at scene

14

Abnormal, related

emotional distress
- ______ response
-closely ______
and
-present at scene

15

tenant in common

A form of ownership where two or more people hold title on the same property. Each person's interest is held in severalty and each person retains the right to will away their interest.

16

invitee

obligations to _______--warn of known hidden danger. take efforts to keep premises reasonably safe

17

licensee

obligations to _______--warn of known hidden danger.

18

Carr v. Deking

• A co-tenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without joining in the lease. You are subject to the lease

19

joint tenancy, tenancy in common

leases die in _____ ________, but not in ________ __ __________.

20

rent

cotenants don't pay _________ unless there was an ouster

21

ouster

the act of ejecting someone or forcing them out

22

easement

(law) the privilege of using something that is not your own (as using another's land as a right of way to your own land)

23

profit á prendre

A profit (profit a prendre), a more specialized type of easement, is a non-possessory property right to enter upon another's land and remove something.

24

covenant

A solemn agreement or pact. In a covenant there are always promises on one side and often obligations on the other. Covenants are usually signed and sealed, sometimes by strange acts.

25

Appurtenant

-relating to something that is added but is not essential,
-Attached to the land (such as a house) or the deed (such as a recorded easement).

26

statute of frauds

required to be in writing under _______ ____ _________
o Marriage: Contract made upon consideration of marriage.
o One-Year: Contract that cannot be performed within one year from its making.
o Land Contract: Contract for the sale of an interest in land.
o Executor-administrator: Contract for an executor or administrator to answer for the duty of his decedent.
o Goods in Excess of $500: Contract for the sale of goods in excess of $500.
o Specially manufactured goods not suitable for sale to others.

27

partition, forced sale

_________ or ________ _______
1. serious $ injury
2. respective financial abilities
3. location, character
4. size & utility of shares
5. sentimental reasons

28

partitions

there is a presumption towards ______ instead of a forced sale

29

Equitable servitude

A covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. The usual remedy is an injunction, not damages.

30

gross

related to a person (property-Easements)

31

easement

railway becomes a bike path; what is the scope of the ___________?

32

goodwill

in Fullerton Lumber v. Torborg, it was ________ that was taken

33

maximum recovery rule

1. what the judge believes a reasonable person could find at maximum for an award.
a. If this is violated, there are a few options:
i. can set aside the verdict and grant a new trial,
ii. could do so only on damages, or remittur

34

invitee

a ________ has to discuss his own personal or own business interest

35

T

you can transfer during one visit from Trespasser to Invitee to licensee T/F?

36

attractive nuisance doctrine

A doctrine treating a child as a licensee, or guest, rather than a trespasser on land containing an artificial and harmful condition that is certain to attract children

37

artificial conditions highly dangerous to trespassing children

1. know children are likely to trespass
2. know items poses unreasonable risk of death/bodily harm
3. children don't appreciate risk
4. B< P*L
5. failed to exercise reasonable care

38

T

CA exception: no categories of licensee, trespasser or invitee. Replaced with n ormal negligence analysis T/F?

39

understand, act

limits in enforceable contracts: ability mentally to ______________ or to _______.

40

F

you could take negligence by statute or theory of negligence to trial. In some jurisdictions, you can't take both T/F?

41

yes

If you don't drink, I will give you $$. you are 23. unilateral contract or no?

42

no

If you don't drink, I will give you $$. you are 19. unilateral contract or no?

43

T

Intentional torts don't have actual damages required, but you do have nominal damages T/F

44

assignable, death

easements in gross are __________ but terminate upon _________.

45

no recovery

common law rule on contributory negligence

46

last clear chance

Defendant was negligent and the plaintiff, through her contributory negligence placed herself into a position of either helpless or inattentive peril. Defendant must be aware of the plaintiff's peril under a duty to discover the plaintiff.

47

can

if defendant had last clear chance, Plaintiff _____ recover.

48

contributory, comparative

examples of negligence defenses are ____________ negligence and __________ negligence

49

portion of damages

common law rule on pure comparative negligence

50

recovery of portion as long as fault <=50% or <50%

rule on modified comparative negligence

51

recover only small %s.

rule on slight comparative negligence

52

defendant

you compare plaintiff's negligence to all of the _________'s negligence combined

53

appurtenant

courts usually favor _____________ easements over easements in gross.

54

commercial

easements in gross are usually ___________

55

stoner v. zucker

Defendants were granted a license by Plaintiff to enter Plaintiff's land and construct an irrigation ditch, and thereafter Plaintiff revoked the license and sued to have Defendants adjudged trespassers. (D) Needed and proceeded to go onto the land to maintain the ditch.

Issue. Is the license revocable at the will of Plaintiff?

Held. No. Judgment affirmed.
The court recognized that, generally, one could not enforce an easement, which is based on oral agreement alone. However, the court recognized that estoppel was valid. Easement by estoppel

56

easement by estoppel

1. change in position due to belief of non-revocability of license
2. change in position due to belief there was an easement.

57

easement by implication

1. use must be apparent, visible, reasonable
2. permanent use intended
3. necessity

58

negative easement

an easement that prohibits a property owner from doing something that affects the property of another; a solar easement

59

economic duress

consists of threats to a person's business or income that cause him or her to enter a contract without real consent. bankruptcy is duress, distress is not, but job-based could be.

60

tunkl

California Supreme Court decision that laid down factors for invalidating an exculpatory agreement: (1) It concerns a business suitable for public regulation; (2) The service engaged in is of great importance to the public; (3) The party holds itself out as willing to perform the service for the public; (4) The party invoking the agreement has a decisive advantage of bargaining strength; (5) The party gives a standardized adhesion contract, with no option to obtain additional protection against negligence; (6) The purchase is placed under the control of the seller, subject to the risk of carelessness by the seller or its agents

61

assumption of the risk

________ __ ____ ____ was merged into comparative negligence

62

implied assumption of the risk

voluntary,
knowing (actual)

63

comparative negligence

damage rules for _________ _____________
pure-- proportionality
modified 50% or 49.9%
slight

64

159-164

misrepresentation is in restatement sections ____- ____

65

last resort

"good faith" is doctrine of ________ ____________

66

McCutcheon v. MacBrayne

dealings must be consistent (consistent means similar way i.e. phone call invoice repeated with no variation)

67

respondeat superior

an employer is vicariously liable for the behavior of an employee working within his or her scope of employment

68

rules for respondeat superior

1. intent
2. nature, time, place
3. time consumed by deviation
4. work for which the employee was hired
5. incidental acts
6. freedom allowed the employee

69

rule in Oboe

If a party withholds details he knows about a property of material value, the property is voidable? low cost preventer

70

word, steps

read every _______ of the exam lay out all the ________

71

detour

Slight deviation from the employers business for an employees own reasons-must be minor in time and minor in geographic area.

72

frolic

Where an employee acts on his/her own without obeying an order. When combined with a detour, where the employee makes a temporary physical departure from the service of his employer, the employer is not vicariously liable through the doctrine of respondeat superior.

73

respondeat superior

rule for _________ ____________. Also have to do negligence claim.
1. Employee or Indep. contractor?
2. scope of the employment (frolic/detour, reasonable connection, coming/going)

74

animals

1. strict liability for owner
2. fence in/fence out= closed range/ open range
a. strict liability applies if the fence isn't built

some knowledge of violent tendencies

vicious/dangerous tendencies

wild animals--strict liability

domestic v. wild

75

cairns

judge that used "non-natural" use as rule for when to impose strict liability

76

Blackburn

judge that used "bringing onto property" use as rule for when to impose strict liability

77

prescriptive easement

- open - notorious - continuous - adverse use - under claim of right - 5 years
- actual knowledge: knowledge requirement much higher bar than adverse possession
- claim of right: (adverse) claiming this as their own but know it is not theirs
- test: continuous use (40 years)

78

equitable servitude

"A land use restriction running with the land if (1) the purchaser of the servient estate was on notice at the time of acquisition, (2) original parties intended for the restriction to run with the land, (3) the restriction ""touched and concerned"" the land. Usually a written requirement exists, but this can be enforced through equitable estoppel. Remedy is in equity (injunctive relief)."

79

covenants

remedy is damages

80

horizontal privity

Nexus between original promising parties. Original parties must be in succession of estate, i.e., they were in a grantor/grantee (A bought the land from B or vice-versa) or landlord/tenant or mortgagor/mortgagee relationships. Very difficult to establish, its absence is the reason why burdens don't run. <so, 9/10 times the answer will be "no it won't run because of the absence of the horizontal privity>

81

vertical privity

refers to those who subsequently obtain the property subject to the covenant. These successors must take the full estate held by their predecessor.

82

in gross

In gross is a term used to describe the benefit. A benefit is in gross if it is intended to benefit its
holder personally rather than in connection with any land the holder owns. If the benefit is in gross, it will
not pass with the transfer of land.

83

covenants, conditions, and restrictions

sometimes called deed restrictions - are private agreements, placed in the public records that control and affect land use.

84

2-204

Formation of contract under UCC, can be made in any manner sufficient to show agreement.

85

Touch land

1. Promise must affect parties' legal relations as landowners, not simply members of community at large
2. Covenants to pay money to be used in connection with the land and covenants not to compete DO touch and concern the land

86

intent, notice

for an easement to run, you need _______ and _______.

87

easements

which runs easier, covenants or easements?

88

clear, unambiguous

Yagner--terms must be ______ and ______________ for contracts to be valid.

89

2-207

Additional Terms in Acceptance or Confirmation - BATTLE OF THE FORMS!!

90

2-209

Contracts for the sale of goods can be modified at any time without consideration but must be in writing unless specially manufactured goods, admitted contracts, goods paid for received and accepted.

91

strict lability in restatement

1. high degree of risk
2. likely that harm will be great
3. ability to eliminate risk by exercise of reasonable care
4.extent to which activity os a common usage
5. appropriateness of activity
6. extent of value and danger to community

92

American Law Reports

the ________ ___ _________ are a resource used by American lawyers to find a variety of sources relating to specific legal rules, doctrines, or principles. It has been published since 1919 and remains an important tool for legal research.

93

primary authority

cases, statutes, regulations, constitutions

94

secondary authority

legal periodicals, encyclopedias, ALR, treatises, restatements

95

ILP, LegalTrac, ILP

___ and __________ are two periodical indexes. ______ is older. good to find law journals

96

Corpus Juris Secundum, American Jurisprudendce

________ and ___________ are the two legal encyclopedias. good for overview, background

97

treatise

a legal _________ is more narrow and in-depth than a legal encyclopedia

98

limited

ALR is a reporter of a ______ number of cases.

99

ALR

West owns ___. It may also be available on Lexis.

100

cases, ALR, legal

research references in annotated codes:
1. ________ (primary)
2. secondary sources
-- ______
-- legal periodicals
-- ______ encyclopedias

101

headnotes

summary of a case, or of an important legal point made in the cases, placed at the beginning of the case when it is published.

102

federal reporter

Use ________ ___________ to find circuit court decisions

103

case, reporters

Judicial branch produces _____ law in ________________

104

statutory, reporters

Legislative branch produces _____ law in ________________

105

legal research plan, working

steps in creating a _____ __________ ____.

1. gather preliminary information
2. write out a plan. figure out how to make it comprehensive. where to check.
3. __________ effectively in the library.

106

components

_________ of a legal research plan

1. preliminary issue statement
2. generate list of potential search terms
3. outline what sources

107

breadth, depth

expand search terms by _________ or by _________

108

common law

touch and concern test in the __________ ________ about covenants was replaced by a reasonableness test

109

2-313

Express Warranties by a) promise b) description c) sample/model

110

2-314

`, IMPLIED WARRANTY OF MERCHANTABILITY

*applies if merchant with respect to goods of that kind.
*selling of food/drink on premises is a sale
*usage of trade is the standard
* even if not merchant, must disclose hidden and known defects
-----
price can be an indication of quality

111

extinguished

Under the merger doctrine, an easement that benefits the dominant estate and burdens the servient estate is ________________ when fee title to each estate is united in one owner.

112

explicitly

joint tenancy must be ____________ stated

113

restraint alienation

A restriction on the transfer of ownership on an estate. Void on a FSA, but acceptable on a Life Estate.

114

privity, Katz

in dealing with covenants, be careful to deal with __________ and the ______case

115

encroachment

_______ is to property as trespass is to people

116

easement

requirements for ________________
-intent
-notice

117

Servient estate

The tract of land burdened by an easement.

118

neighborhood conditions

change of condition policy plays deference to _______________ ________________

119

2-209

Contracts for the sale of goods can be modified at any time without consideration but must be in writing unless specially manufactured goods, admitted contracts, goods paid for received and accepted.

120

express, warranties

warranty analysis
1. __________ warranties (2-313)
2. Implied __________ (2-314, 2-315)
-when the seller disclaimed warranties

121

dominant

which warranty is __________?
1. specific warranties
2. tangible evidence
3. express warranties

122

chattels

articles of personal, movable property

123

sovereign immunity

modern rule for ________ ___________
ministerial or discretion

124

negligence

no privity
mis-feasence
________--"foreseeable end user is injured"

125

things to look for in cases

parties and relationships
places and things
potential claims
relief sought

126

picking a research scholar

cost, scope

127

Boolean

terms and connectors searching

128

Keycite, Shepard's

citators: West, lexis

129

Focus, locate

make a second search: West, Lexis

130

similarities, differences

look for _____________ and _________________ on exams.

131

viable

don't answer all concievable questions, but all ________ questions, easy and hard

132

884

page in property for covenants running with the land

133

Federal arbitration act

provides that an arbitration clause in a contract relating to an interstate transaction is valid, irrevocable, and enforceable

134

strict liability

in the penultimate case of the semester in Torts, the court blended comparative negligence with _________ ____________

135

third

FSSEL always goes to ________ party.

136

vested

________ subject to partial divestment.

137

easement by necessity

Created by a court of law in situations where justice and need, not convenience, dictate the appropriateness of the easement; such as the case of land locked property., occurs when land does not have access to a street or public right-of-way and is landlocked

138

Warranty of fitness for a particular purpose

arises when the seller advises a customer that a product is suitable for a particular use and the customer act on that advice

139

negligence, warranty, strict liability

three theories of product liability recovery

140

inspection

policy: strict liability

--used without _____________ for defects

141

easement

types of __________
-estoppel
-prescriptive
-necessity
-_____________ by implication

142

Waywak v. stewart

land must be habitable (developer to first buyer)

143

Nichols v. R.R. Beaufort & Associates, Inc.

privity does not extend to second buyer.

144

obde v. schlemeyer

termites contracts

145

question

Always read the whole _____________

146

option, liquidated damages

non-refundable deposit may be an __________ or _____________ __________________

147

knowledge

misrepresentation may be based on ___________.