Vous êtes sur la page 1sur 1

Jurisprudence: Natural Law(only if moral)/ Positivism (only law)/Realism(rule+fact,law changes if judges change)/Critical Realism(law decided by fallible ppl, objective)/Law&economics(cost

benefit analysis) High(bind)low; appeal if error of law/prejudicial Civil procedure: To sue or not to sue (P must have standing(injury)=concrete & particularized legally protected interest,causation(injury traced2action), redressability(favorable decision fix problem), ripeness, mootness=legal proceedings have no effect if solved),Ripeness(X if not yet happened) /injunction:TRO(), Temp I, Perm I// Choice of venue-judge(personal jurisdiction[can waive@ beginning of case, minimum contact], subject matter jurisdiction*cant waive+, venue[def /event occurred/ if neither worksjurisdiction over any. Fed courts if diversity of citizenship; Fed question in which US is a party; Bt 2 states, ect])=forum shopping //Preliminary filings and injunctions (judicial order requiring D to do or not do something in order to maintain status quo while case goes forward), motions to dismiss, each side pays its own legal fees except in antitrust, civil rights, and consumer protection cases Steps for filing lawsuit: File a complaint: short and plain statement of jurisdiction including allegations, legal basis for relief, and a demand for judgment; request for temp. restraining order or prelim. Injunction; service of process on D, summons by court//Answer: accept, deny, or deny on insufficient information, anything not denied is admitted, affirmative defenses (only affirm part of claim; D has burden of proof), counterclaims, crossclaims (against other D); or motion to dismiss based on lack of jurisdiction, improper venue, insufficiency of process; fail to state a claim; fail to join an indispensable party//Discovery: requests for production of documents (broad), interrogatories, depositions, depositions on written questions; motion to compel(others to do same thing), motion for protective order(protect from XXX)--must be relevant and not privileged(attorney-client relationship, self-incrimination, work-product (stuff lawyers are working on not discoverable)) and not to embarrass, undue burden. //motion for summary judgmentother party has no evidence to make trial necessary (ask the judge to apply the law in largely uncontested facts and make ruling)//The trial, juries (best if loyal, hometown)//Appeals// Collecting the judgment, class action (Ps have common legal/factual elements), arbitration (choose own arbitrator but appeals rare)// Jurisdiction: Federal: patent, trademark, copyright, Constitution//Concurrent: cases arising under the constitution, statues, or treaties of the United states and diversity jurisdiction over $75,000 (not including interests or counterclaims), citizenship=the state where he is domiciled and has a fixed intent to reside// Personal jurisdiction: resides or does business in state, service of process in the state, consent//In rem jurisdiction: jurisdiction over property//P consents to jurisdiction, question of whether court has jurisdiction over D Juries: Cause-dismissal b/c of obvious reason for impartiality// Preemptory challenges- attorney can remove jurors w/o reason except sex and race//Juries decide issues of fact, judges decide issues of law//Judge gives jury instructions, charge, at end of trial, telling them what issues to decide and what laws to apply//Motion for directed verdict-after both sides present arguments, judge decides there are insufficient facts to go to jury or only result could reasonably follow// Motion for judgment note/standing- judge overturns jurys verdict//Possible flaws of juries: inconsistency w/ legal theory (subjectivity), variability in damage awards, uncertainty and incompetence Tort- wrongful act or omission which is the cause of damages Intentional- act for the purpose of inflicting a harmful or offensive contact on plaintiff or know that such a contact is substantially certain to result-dont have to intend consequences, just harm

Battery: Infliction of harmful / offensive contact(Intent[to cause the contact]+Act+Contact with plaintiff+[w/o plaintiffs consent+) Assult: cause plaintiff to apprehend imminent battery(Intent[to create apprehension]+overt act+Plaintiffs reasonable(or on notice) apprehension of battery) Self-defense: affirmative defense Negligence-failure to exercise the care that would have been exercised by the reasonably prudent person under the circumstances, causing damage to person or property// Must prove: breach of duty of care, proximate cause, and injury. Involves: duty (duty to act with reasonable and due care in the circumstances with standards of a person the same age and physical, not mental, condition unless D has asserted special skill in which case requirements are higher, BPL, safety related statutes (P is in class of people and injury type that it is intended to protect), custom (failure to comply is stronger than compliance)), breach of duty (Res Ipsa Loquitor-event wouldnt normally occur w/o negligence, other responsible causes eliminated by evidence, negligence within scope of Ds duty to P , causation (cause in fact-but for rule to prove: if D had not acted negligently, P would not have suffered harm, proximate cause (substantial factor test)-defendants failure to confirm to the standard must have a close enough connection with the injury with no sufficiently intervening causes that breaks the chain of causation if so extraordinary and not related to Ds conduct that they cant be liable, superseding breaks chain of causation, foreseeable intervening causes do not, simultaneous/sequential causes, DES-look at market share of manufacturers at the time to allot damages unless they can prove otherwise), and damages (put plaintiff in the position absent the tort: economic (medical costs, lost wages, lost ability to work), reputation, emotional distress, pain and suffering, loss of consortium)//no requirement to act unless: special relationship (common carrier, innkeeper, employer, store owner, parent), D created risk, D undertook rescue, duties to those on your land (foreseeable risk and reasonable care), or relationship between D and X gives D the duty to control X but X harms P//cases difference when there is an emergency//affirmative defenses: contributory negligence (claim is barred with any negligence by P, defendant must not have had last clear chance to avoid harm), comparative negligence (liability in proportion to fault), modified comparative (cant recover is P is more than 51% negligent), assumption of risk (contractual or implied) Soldano v. ODaniels: bartender refused to make call to police, duty owned to third person determined by foreseeability of harm, degree of certainty of injury, closeness of connection between Ds conduct and injury, moral blame of conduct, policy of preventing future harm, burden to the D for duty to exercise care; bartender did have duty to let P call or call himself Strict liability- abnormally dangerous activity that cannot be made safe by exercise of care, wild animals, manufacturing defects (everyone in chain of distribution), design defect (expectation test, risk/utility test), failure to warn (cost/efficacy of warning) Love v. Hardees: P slipped on water in bathroom, must show that D knew, or by using ordinary care, could have known of dangerous condition and failed to use ordinary care to remove it or warn and plaintiff was injured as a result. //Palsgraf (proximate cause): Guard helped passenger on train but package fell and exploded and injured P. If no hazard was apparent, the act was harmless and gave no notice of being able to harm plaintiff.//Dukat: Dukat slips on ice outside bowling alley, it was the only way out, Dukat had prior knowledge of ice and had drinks. No assumption of risk or contributory negligence.//Pyrodyne Corporation: factors for abnormally dangerous activity (had 4 out of 6): high degree of harm to others, likelihood that harm is great, reasonable care doesnt eliminate risk, not common usage, inappropriate to the place it was performed, value

to community is outweighed by danger. Corporation is strictly liable.//Eckert (reasonable person): the circumstances plaintiff was in, not wrong, rash, or reckless to make every effort to rescue child with reasonable regard for his own safety, RR company not liable either because train was not going too fast//US v. Carroll Towing (negligence): barges, should act when B<P*L. Higher probability of damage when storm threatens and in crowded harbor, fair requirement that the company have a bargee aboard during working hours of daylight, not necessarily at night//TJ Hooper (custom): owner was sued b/c tug wasnt equipped with radios that would allow them to receive storm warning when cargo was lost. The injury was consequence of unseaworthiness, radios almost universal practice so duty of tug owner to supply effective receiving sets.//Ybarra (Res Ipsa): P awoke from operation with pain in neck and shoulder, can show that injury cause by external force while unconscious.//Summers v. Tice (causation): two shots fired, both negligent and should be left to work out any apportionment//Tarasoff (special relationships): P claims that D should have warned of impending harm and confine Poddar, D says they owned no duty of reasonable care to Tatiana; should have warned to protect public interest, police didnt have to confine him because they didnt have special relationship to Tatiana or Poddar//Murphy: the Flopper, case went to jury upon the theory that negligence was dependent upon a sharp and sudden jerk, case for defendant, assumption of risk Escola v. Coca Cola: manufacturer incurs absolute liability for articles placed on the market knowing that it is being used without inspection and injures someone; retailer liable as well for implied warranties of fitness//Potter (design defect): shipyard tools defectively designed because they exposed P to excess vibration, P has burden of proof, expert testimony that showed that excess vibration has relationship with hand arm vibration syndrome, testimony about methods to decrease effects of vibration caused by tools//Oshea: injured leg and couldnt perform job as cook, compensated with lost future wages including inflation because that was the only thing she was trained for and it involved standing