Blaw exam 1

10th amendment

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." •Any powers which the Constitution does not give to the federal government are reserved to the states •Commonly referred to as the state's "Police Power" •When state governments create laws in areas where the federal government does not have power, this amendment is the source of the state's authority

missouri judicial system

(top) supreme court court of appeals circuit court municipal court

state court systems

****Supreme court (court of last resort) •Discretionary review from lower courts •Reviews both lower court proceedings ****Intermediate appellate courts •Mandatory appeals from lower courts •No trials or juries •Determines law; reviews lower court proceedings ****Trial courts •Original, (mostly) unlimited jurisdiction •Bench trial or jury trial determines facts

torts against persons

***Assault: placing another person in fear or apprehension of imminent and offensive bodily contact •Judged by victim's perspective - were they actually and reasonably afraid or apprehensive? •Words alone are usually insufficient unless accompanied by actions suggesting imminent harm ***Battery: intentional and unwanted offensive or harmful bodily contact •Judged by tortfeasor's perspective - did they intend to act? Victim's perspective is irrelevant. •Remember, intent is only required for the act; not required to intent the resulting harm ***Defamation: intentional publication (or communication to a third party) of a false statement that is harmful to an individual's reputation (opinions don't count unless based on false facts!) •Written = libel •Spoken = slander •Defenses to defamation: •The TRUTH! •Privilege - required to give honest opinion (testimony, employee references, etc.); public figures must prove "actual malice" (statement made was known to be false or made with reckless disregard for its veracity)

Defenses to Torts Against Persons

***Consent: consent to act negates "unwanted" action by would-be tortfeasor ***Self-Defense: only allowed when battery is imminent or has already happened; only allowed to use comparative force used or reasonably threatened by opposition ***Defense of Others: third party can step in to defend another; still limited to force based on what is used/reasonably threatened by opposition ***Defense of Property: reasonable force allowed to defend own property from imminent harm

torts against economic interest

***Disparagement: like defamation (false statement published to third party) but damage is to a property interest (or economic interest) as opposed to an individual's reputation ***Intentional/tortious interference with contract: intentional interference with contract or business relationship of another party; requires tortfeasor's knowledge of contract or business relationship ***Fraudulent misrepresentation/Fraud: (1) statement made or information concealed, (2) tortfeasor knew information was false and suspected victim would believe them, (3) victim actually relied on information, (4) victim harmed by reliance on false statement

torts against property

***Trespass to realty: intentionally enter land of another without permission; cause object to be placed on land of another without landowner's permission; stay on land of another when the owner tells you to leave; or refuses to remove something placed on the land of another ***Trespass to personal property: temporarily exercising control over another person's personal property ***Conversion: permanently removes personal property from the owner's possession and control

breach of warranty

***Warranty: a guarantee or binding promise regarding a product ***Express Warranty: clear words that promise/guarantee a product will or won't do something •Plaintiff must prove warranty was "basis of the bargain" and it was false/breached ***Implied Warranty of Merchantability: merchant selling goods in their trade impliedly promises goods sold are fit for their intended, ordinary use ***Implied Warranty of Fitness for a Particular Purpose: plaintiff must prove merchant seller knew customer's specific purpose and that plaintiff relied on merchant's skill/judgment

types of defects

***manufacturing defect: •An individual product has a defect that makes it more dangerous than other, identically produced products •Examples: defective cars that prompt recalls to fix specific parts ***design defect: •All units produced are defective because of some common design flaw they all share •Defect causes product to be ineffective or unsafe when put to foreseeable use or misuse ***failure to adequately warn: •Product is defective because it does not sufficiently warn about potential dangers associated with foreseeable use or misuse •Warning itself can be defective, absent, or misleading

defenses to product liability claim

**Plaintiff's Own Negligence: (not the defendant's) contributory, comparative, or modified comparative negligence depending on jurisdictional laws and precedent **Assumption of the Risk: plaintiff knows/understand the product's defect but chooses to use it anyway **Misuse: plaintiff's misuse of the product is unreasonable or unforeseeable **State of the Art Defense: manufacturer claims their conduct was reasonable because they did as well as the possible could at the time the manufactured the product

taxing and spending authority

-gov. can levy, collect, and spend taxes •Taxing: Congress can impose taxes as long as they are applied uniformly among the states •Spending: Congress can spend federal money to pay debts, military expenses, and for "general welfare" •This third prong is hard to define. What do we mean by "general welfare" and how is this assessed?

trial process

1. Jury selection ("voir dire") - purpose is to establish unbiased jury; candidates can be stricken "for cause" or by using a "peremptory challenge" for (almost) any unspecified reason 2. Opening statements - purpose is to introduce the jury to the case and tell them what you will show and tell them 3. Witness examinations and presentation of evidence •Plaintiff first; then defendant •Direct examination first; then cross examination •Expert witnesses (if included in the case) 4. Closing arguments - both sides summarize what they have presented during trial 5. Jury instructions - judge tells jury what they need to decide 6. Jury deliberation - private, secret, unlimited time, must be unanimous or else "hung jury" 7. Verdict presented - judge reads jury verdict in court; trial over

Res Ipsa Loquitor

="the thing speaks for itself" shortcut for proving negligence when there are limited facts or information suggesting a breach of duty and causation requirements •If plaintiff can prove: 1. The event resulting in damages is something that normally does not occur in the absence of negligence, and 2. Other possible causes of the injury (like third parties or plaintiff's own negligence) are unlikely, and 3. The resulting damage is within the scope of defendant's duty, then •Negligence can be inferred and the burden shifts to the defendant to prove why he/she was not negligent. Ex. Bonacci v. Brewer Serv. Station, Inc.

strict liability

=a party is liable for resulting injury even when they were not at fault in causing the damage •Exists because some activities are unusually dangerous or ultra hazardous, so parties are encouraged to be extra careful if they know they are liable for injuries even if they did nothing wrong •Examples: dynamite blasting in populated area, keeping wild animals with "known propensities" for violence...often used in product liability lawsuits

Negligence Per Se

=applied when defendant violates a safety statute designed to protect or prevent a specific thing from happening and that is exactly what happened as a result of the violation •Example: A statute prohibits the sale of alcohol to minors. A liquor store sells alcohol to a minor, who then drives drunk and hits a pedestrian. The liquor store is liable to the pedestrian under negligence per se because it violated the safety statute and the resulting harm is what the statute was designed to protect.

court cases:

=create common law that binds courts within a jurisdiction •"stare decisis" ("to stand by things decided") means courts are generally bound to follow precedent within their jurisdiction •lower courts must follow precedent created by higher courts within their jurisdiction

Alternative Dispute Resolution (ADR)

=methods of resolving a dispute rather than using a court for litigation •Often faster and cheaper •Can provide for more creative results that let parties stay in control of their conflict resolution •Businesses can control claims against them and restrict publicity through confidentiality requirements

in what court can a case be filed?

Any court that has both - Personal jurisdiction AND - Subject matter jurisdiction

articles of constitution

Article 1: establishes legislative branch consisting of a bicameral Congress (Senate and House of Reps) Article 2: establishes executive branch consisting of a president, vice president, and other leaders Article 3: establishes judicial branch consisting of U.S. Supreme Court and other lower federal courts Article 4: establishes relationship between states and federal government Article 5: establishes process for amending the Constitution Article 6: establishes the Constitution and all federal law to be the supreme law of the land Article 7: establishes procedure used by states to ratify the original Constitution

State action doctrine=

Bill of Rights only protects citizens from government infringement of protected rights

Felipe grew up in Portland, Oregon. He got a scholarship to play trombone at Mizzou, so he packed up and moved to Columbia, Missouri. One day during Marching Mizzou band practice, he saw Ricardo flirting with his girlfriend which made him angry. During the next marching drill, Felipe purposely tripped Ricardo who fell on top of a sousaphone and broke his leg. Ricardo wants to sue Felipe over this incident. In which court(s) can Ricardo file this lawsuit? A.The U.S. District Court for the Western District of Missouri B.The Missouri Court of Appeals, Western District C.The Missouri circuit court in Boone County D.The U.S. Court of Appeals for the Eighth Circuit

C

checks and balances

Legislative Branch •Controls structure of lower courts •Drafts legislation that can overrule judicial rulings Executive Branch •Appoints federal judges •Can pardon federal offenders Judicial Branch •Can declare laws or executive actions unconstitutional...where does this come from?

federal court system

U.S. Supreme Court (1) •Discretionary review U.S. Circuit Court of Appeal (13) •Mandatory appellate review U.S. District Court (94) Federal jurisdiction required

the first 10 amendments is the...

bill of rights

what branch are the president and vice president a part of?

executive

which branch has veto power?

executive

t/f corporations are not protected by the first amendment

false

t/f courts using the market share theory generally require the plaintiffs to prove that the majority of defendants are tortfeasors (person who did the tort)

false

t/f judicial review is explicitly laid out in the constitution

false

t/f the 3rd amendments protects citizens from unreasonable search and seizure

false

t/f when a customer purchases a product for a particular purpose and the seller is aware of this purpose, an implied warranty of merchantability arises

false

t/f assumption of the risk is a doctrine that makes it easier for the plaintiff to prevail in a negligence lawsuit

false, that wouldn't help you

t/f intentional torts occur when the defendant is careless to someone else's detriment

false. careless=negligence

t/f a strict liability tort occurs when a defendant acts with the intention of engaging in a specific act that ultimately results in injury

false. strict liability has nothing to do with intention

T/F juries decide questions of law

false. they decide questions of fact

which branch can makes the laws?

legislative

"nerve center" test=

location of high-level officers who direct and control corporate activities i.e. headquarters

t/f congress can use its spending power to achieve social welfare objectives

true

t/f in some cases the US supreme court functions as a trial court of limited jurisdiction

true

t/f in the US torts are classified as intentional, negligent, or strict liability

true

t/f the state of the art defense is used by a defendant to demonstrate that his alleged negligent behavior was reasonable given the available scientific knowledge existing at the time the product was sold or produced

true

t/f subject matter jurisdiction is a court's power to hear certain kinds of cases

true. personal jurisdiction relates to geography

depositions

verbal examination under oath to gather sworn testimony from key witnesses; court reporter and videographer often present; can be used at trial for various purposes

requests for admission of facts

written and must be answered in written response under oath

interrogatories

written questions answered in written reply under oath

requests to produce documents

written requests to share documents; privileges may be asserted

Negligence: (1) Duty

•A tortfeasor can only be liable for negligence to those owed a duty of care •Individuals owe a duty of reasonable care in taking any action based on a reasonable person standard - What would a reasonable person do in the same scenario? •Duties can be imposed by laws, relationships, or conduct with others •The reasonable person standard can be heightened to a "reasonable professional" standard

U.S. Constitutional Amendments

•Amendment = "minor change" •In total, the Constitution has been amended 27 times = 27 amendments •Amendments 1-10 known as "Bill of Rights" added Dec. 15, 1791 (impetus of James Madison) •Additional amendments added later •Most recent amendment (27th Amendment) ratified May 7, 1992

The U.S. Constitution - History and Formation

•Articles of Confederation approved by Second Continental Congress on November 15, 1777 and ratified by the (13) states/effective as of March 1, 1781 •U.S. Constitution superseded Articles of Confederation effective as of March 4, 1789 •Primary drafters included James Madison, Alexander Hamilton, George Washington and other delegates at the Constitutional Convention in Independence Hall in Philadelphia from May-Sept. 1787 •Document reflects English influence Original Constitution had seven articles written on four pages

ADR - Mediation

•Can be court-ordered or chosen by parties •Parties bring in third party, neutral mediator to assist in negotiations •Mediator usually has expertise and/or experience in the subject matter •Procedure can vary in practice - private caucuses, joint session, virtual mediation, etc. •Mediator does not have power to resolve the case - entirely voluntary process of dispute resolution •"mediator's proposal"

commerce clause

•Congress (federal gov.) has power to regulate any activity that may have an affect on interstate commerce •This doctrine has been aggressively expanded and provides authority for majority of Congress' actions •NLRB v. Jones & Laughlin Steel Corp. (1937) - work stoppage at manufacturing plant affects interstate commerce •Wickard v. Filburn (1942) - farmer growing more wheat than was permitted could not escape fine because his surplus could affect interstate commerce by lowering his need to purchase wheat...snowball effect!

what is a court?

•Courts are part of the judicial branch of government •Purpose is dispute resolution - lawsuits are, fundamentally, disputes between parties •Judge and/or jury ultimately determine outcome if parties cannot otherwise resolve the dispute •Plantiff(s) file suit against Defendant(s) by serving copies of complaint and summons ("service of process") to appear in court •Courts generally hear wide variety of cases - civil AND criminal

Defenses to Negligence

•Defenses available differ by jurisdiction ***Contributory Negligence: if plaintiff and defendant were both liable, the plaintiff cannot recover unless she can prove the defendant had the last clear chance to avoid the resulting injury ***Comparative Negligence - Pure: court determines the degree (percentage) of each party's negligence and each party is responsible for that percentage of the damage - Modified: same scheme as pure comparative negligence, but defendant must be >50% at fault for plaintiff to recover anything ***Assumption of the Risk: if plaintiff voluntarily and unreasonably agrees to conduct presenting an obvious and known risk, she cannot recover for damages caused by resulting negligence ***Good Samaritan Statutes: laws that remove liability for negligence when people act courageously

the venue....

•Determines which trial court in a jurisdiction can hear the case •Judicial district where defendant is domiciled •Judicial district where substantial amount of events at issue took place •Can often have venue in multiple judicial districts •Venue can be specified by forum selection and/or choice of law clauses

strict product liability

•Does not require intent to injure or negligence in not being careful enough, but still liable for the injury •Purpose is because some activities are just dangerous no matter what, and this encourages maximum safety and carefulness •Plaintiff must prove: 1.Product was defective when it was sold (design, manufacturing, warning, etc.) 2.Product's defect rendered it unreasonably dangerous 3.Product caused the resulting injury

market share liability

•Exists because it is often hard to trace product liability back to specific manufacturer when several manufacturers product identical products, so this tool can be used to apportion damages •Plaintiffs must prove: 1.All defendants are tortfeasors, and 2.All products are identical and equally defective, and 3.Impossible to determine which defendant caused the injury, and 4.All possible defendants are named in the lawsuit •If all components are present, defendants' liabilities are based on their percentage of market share in the relevant product market

methods of proving defects

•Expert witnesses used to explain how/why any design, manufacturing, or warning flaw is present •Experts qualify based on specialized knowledge recognized by community or professional standards •Consumer Expectations Test: product did not meet standard expectations held by reasonable consumer when put to intended use or foreseeable misuse •Feasible Alternatives Test/Risk-Utility Test: defective if risk potential for danger outweighs potential for utility

supremacy clause

•Federal law is the supreme law of the land •Any state or local law that conflicts with any federal law is void ("preempted") •Concurrent authority possible •States can further regulate and set higher standards than federal law •Federal law can use field preemption to prevent states from regulating the same subject matter area

sources of law

•Federalism - division of power between federal, state, and localities •Constitutions - U.S. Constitution is supreme law of the land, but states have them too! •Statutes - federal, state, and local legislatures create written law •Administrative law - federal and state agencies regulate specific industries

Diversity Jurisdiction: Corporate Citizenship

•For federal diversity jurisdiction purposes, a corporation has citizenship (and can be sued) in two jurisdictions: 1.State of incorporation, or 2.Location of its principal place of business

Takings Clause ("eminent domain")

•Gives government authority to take private property if (1) intends to use it for "public use" and (2) provides property owner "just compensation"

7th amendment

•Grants all citizens a right to trial by jury in civil lawsuits where the remedy being sought is payment of money for more than $20 •Right to jury trial in criminal trials is addressed in a different amendment (5th Amendment)

Negligence (2) Breach of Duty

•If a duty exists, it is breached when a party fails to exercise their duty of reasonable care •Typically, the reasonable care standard is only changed for professionals and not for other unique characteristics •Even if a duty exists and injury results, the party who has a duty must be the same party who breached the duty •Example: Landowners owe a duty of reasonable care to guests they invite onto their land. If I invite a friend to my house and, as he walks up to my front door, my neighbor's dog runs onto my property and bites him, I am not liable to the guest for negligence even though I owed him a duty of care and he was injured on my land.

negligent product liability

•Product manufacturer liable for negligent product liability if plaintiff can prove: 1. Manufacturer owed the plaintiff a duty of care 2. Manufacturer breached that duty by supplying defective product 3. The breach of duty caused injury to the plaintiff, and 4. Plaintiff suffered actual injury •Product manufacturers owe duty of care to any foreseeable plaintiff (users, consumers, bystanders) •Foreseeable plaintiffs can sue anyone in the supply chain (manufacturer, wholesaler, retailer, etc.) •Anybody besides the manufacturer can easily satisfy duty of care by carefully inspecting product before transferring it on

priviliges and immunities clause

•Prohibits states from discriminating against citizens of other states in ordinary and essential activities (e.g. buying/selling property, seeking employment, using court system) •Substantial reason for discrimination or unordinary/nonessential activity is not covered (e.g. out of state tuition, hunting license)

negligence per se

•Statutes and regulations often set the standard requirement for warnings •When these "safety statutes" are violated and plaintiffs from the intended class the statutes are designed to protect are injured, negligence per se results -no breach of duty required

Negligence (3) Causation

•There are two types of causation, and BOTH must exist to succeed on a negligence claim. •Actual causation: ("cause in fact" or "but for" causation) the plaintiff would not have been injured "but for" the defendant's actions •Ask: did the plaintiff's breach of duty cause the resulting injury? •Proximate causation: ("legal" causation) the injury suffered was foreseeable based on the defendant's breach of duty • Negligent party only liable for damages that are foreseeable and within the "zone of danger" created by their negligent conduct

ADR - Arbitration

•Third party arbitrator or panel has judge-like authority to issue final decision •Arbitrator usually has subject matter knowledge or expertise •Process similar to trial steps culminating in arbitration hearing akin to actual trial although procedural and evidentiary rules can vary •Arbitrator issues award that is very hard to overturn in court •Reasons for setting aside award: •Corruption, fraud, bias •Refusal to postpone or admit evidence resulting in extreme prejudice •Award exceeded scope of arbitrator's authority Business often force arbitration by contract; lose use of courts

tort law...

•Tort= A wrongful act (other than breach of contract) that causes harm •Common law has recognized a civil cause of action •Purpose of tort law is to provide compensation for injured parties, discourage private retribution by injured parties, promote justice and fairness in society, deter future misconduct •Intentional tort: wrongdoer ("tortfeasor") intended the consequences or knew the likely consequences of his/her actions •Requires intent behind the act that happened - not necessarily intent to cause the resulting harm

Damages Available in Tort Cases

•In order to win in any intentional tort claim, the plaintiff must have suffered some degree of actual damages •Compensatory damages: money damages to compensate victim for harm suffered (including future harm yet to be suffered); goal is to put plaintiff in position he/she would have been in had tort not occurred •Economic Damages: lost wages, lost earning capacity, medical expenses, etc. •Non-Economic Damages: pain and suffering, mental anguish, loss of capacity to enjoy life, loss of consortium, etc. •Nominal damages: minimal amount of money that signifies a tort occurred but no real harm to compensate •Punitive damages: special damages sometimes available and awarded meant to punish defendant for egregious conduct and deter future conduct ex= Alabama has punitive damages cap of 3x actual damages or $500,00 - whichever is greater •Tort reform initiatives often attempt to limit or cap punitive/non-economic damages available

personal jurisdiction

•Jurisdiction over the parties involved •Always required in order for a court to issue a ruling that binds the parties •A court's jurisdiction over the parties in the dispute - largely based on geography - Location of service - company's principal place of business - domicile •Parties' citizenship and location of case events are largely determinative •Citizenship = domiciled where party intends to permanently reside •Long-arm statutes extend personal jurisdiction based on "minimum contacts" standard •Ex. committing a tort, breaching contract, or doing business in the jurisdiction •Can often have personal jurisdiction in multiple different judicial districts

subject-matter jurisdiction

•Jurisdiction over the subject matter of the dispute •State courts typically have unlimited subject matter jurisdiction - most cases can be filed here •Exceptions: admiralty, bankruptcy, federal crimes, federal intellectual property claims, disputes between multiple states or initiated against the United States •Federal courts are courts of limited subject matter jurisdiction - cases must show why they belong 1.Federal question jurisdiction - case involves U.S. Constitution or other federal law 2.Federal diversity jurisdiction - case has BOTH: (1) amount sought exceeds $75,000; and (2) complete diversity of state citizenship between all plaintiffs and defendants •Concurrent jurisdiction = case could be filed in either state or federal court •If filed in one, may be removed or remanded to the other

Negligence (4) Damages

•Like all torts, compensable damages are generally required for successful recovery •Punitive damages are sometimes available in instances of gross negligence (extreme/severe negligent act committed with extreme recklessness or disregard for the property or life of another person) •Extreme negligence can also raise to the level of criminal negligence

negligence

•Likely the most common tort claim •Arises from general carelessness, mistake, or accident that causes some sort of damages •Unlike intentional torts, negligence does not require the tortfeasor to have any intent at all. In fact, plenty of time negligence claims arise because a party literally does nothing. •Actions for negligence must prove four elements: 1.Duty 2.Breach of duty 3.Causation (two types) 4.Damages

ADR - Negotiation

•Not a formal process; part of every dispute at some point •Opportunity for parties to resolve conflict on their own via settlement agreement

judicial review

•Not explicitly stated anywhere in the Constitution (or amendments) •Created via common law by Marbury v. Madison (1803) •Doctrine that gives courts in the judicial branch the power to review legislative and executive action and strike down unconstitutional action •Also allows higher federal courts to review constitutionality of lower federal courts' decisions

negligent failure to warn

•Plaintiff must show that defendant knew or should have known that the product would be dangerous in its foreseeable use or misuse without any warning or without a sufficient warning •Not required to warn about obvious dangers (but better safe than sorry) •Manufacturer only liable for dangers that it knew/should have known about at time of manufacturing

introduction to product liability

•Plaintiffs can hold others liable if they can show: 1. The product is defective, and 2. The defect existed when the product left the defendant's control •Products are defective when they are not reasonably safe when put to a foreseeable use or misuse by a foreseeable user •Liability for defective products is not always equally shared by manufacturer, wholesaler, retailer, etc. throughout the supply chain network

pretrial process

•Pleadings •Complaint + summons = service of process •Defendant files an Answer with specific responses to all parts of the Complaint (affirm, deny, or unsure) •Answer can also contain affirmative defenses ("yes, but...") or counterclaim(s) or crossclaim(s) •Pretrial motions - ask the court to do something •Motion to dismiss ("so what?") •Motion for judgment of the pleadings •Discovery - all parties share/learn more relevant information about the allegations of the lawsuit in order to prepare for trial

1st amendment "free speech"

•Political speech is given the highest degree of protection; hard for government to restrict political speech •Commercial speech considered "low value" speech so government has more power to regulate its content •To regulate commercial advertising (speech) gov't must show: •Legitimate and substantial governmental interest served by regulation •Regulation must directly advance that government interest •Regulation must not be more extensive than necessary to serve the government interest •Does not protect "low value" speech such as defamatory or obscene speech

civil vs. criminal cases

•Private parties typically start civil cases. Only the government can start a criminal case. •Same activity can result in both civil and criminal cases •Ex. Fraud can be policed by the government and by private parties •Relief available: •Civil: financial damages, restitution, equitable relief, declaratory remedy •Criminal: financial damages, incarceration •Standard of proof: •Civil: preponderance of the evidence (>50% certain) Criminal: beyond a reasonable doubt (~99% certain)