Negligence
What is the rule for negligence?
Negligence is conduct that falls below the standard of care established by the law for the protection of others against unreasonable risk of harm; negligence requires proof of duty, breach of duty, causation, and actual damages.
What are the ways to have IN PERSONAM personal jurisdiction over an INDIVIDUAL? and what is required for each way
- general (personal service in the forum, individual is domiciled "essentially at home" in the forum)
- specific ( three prong test: sufficient minimum contacts with the forum, suit arises out of or relates to contacts with the forum, and exercise of PJ does not offend fair play and substantial justice factors
what is required to assert a promissory estoppel claim
- actual promise made
- promissor should reasonably expect that promisee will rely on her promise
- promisee in fact relies on the promise
- therefore justice requires enforcement
an actor is subject to liability to another for ____ if:
- he acts intending to cause a harmful or offensive contact or an imminent apprehension of such contact AND
- the contact with the person directly or indirectly results
Battery
Lisa consented to an exploratory spleen operation, which would take a small sample of spleen tissue for testing. While Lisa was heavily sedated before the operation, Dr. Op induced her to sign a further consent form allowing the use of the spleen tissue in the development of gene therapies for spleen disorders. Dr. Op then performed the operation in a competent fashion and completed the normal testing on Lisa's tissue. The tissue was then sent to Dr. Op's laboratory for gene therapy development, as noted. Lisa later learned of the consent form she signed while sedated, and sued Dr. Op for battery. Who will prevail?
Dr. Op
- Lisa gave two consents in this scenario, only one of which was suspect. The consent to the operation itself appears to be valid and knowing and would cover the technically harmful contract of the operation. The second consent form covered the use of the tissue obtained from the operation once testing was completed. While the second consent may be invalid, it does not invalidate the original consent to the operation.
Mom is the mother of Toddler, who is almost two years old. Mom and Toddler are visiting Friend’s quaint rustic cabin. One morning when Friend has gone to run errands, Mom and Toddler are in the kitchen, a lovely room lit by a kerosene lamp sitting on a kitchen table. When Mom leaves the kitchen for an hour to read a book, Toddler knocks over the lantern, starting a fire that damages Friend’s cabin. In a negligence action brought by Friend against Mom, is Mom likely to be held liable in negligence?
Mom is likely to be held liable in negligence to Friend
- because Mom failed to act as the reasonable prudent person when she left Toddler alone for an hour next to a kerosene lamp.
Londyn, a citizen of Louisiana, files suit against Barrettes, a citizen of North Dakota, in a federal court in Texas, asserting a $65,000 personal injury claim arising out of an injury Londyn sustained while visiting Barrette's ranch and a $15,000 conversion claim alleging that Barrettes stole Londyn's diamond bracelet during a party at Londyn's house. Does the Federal Court in Texas have subject matter jurisdiction over Barrette's?
- the federal court has diversity/alienage jurisdiction over Barrettes because there is complete diversity between the parties AND a single plaintiff can aggregate claims against a single defendant
common law rule for acceptance
have to have an acceptance that mirrors the term of the offer exactly - mirror image rule
Michael was Angry at Big Brody so Michael hatched a plan. He would sneak up on Brody while Brody was sleeping in his tent and point his rifle into the center of the tent where he knew Brock always slept and shoot, killing Brody. Michael waited until Brody was camping out in the wilderness and he snuck up to the tent. He stuck the barrel of the rifle through the opening of the tent and fired into the center of the tent without looking. It turns out that Brody was nowhere near the tent and Michael ended up shooting only Brody's expensive sleeping bag, completely destroying it. This was curious since Brody never slept with a sleeping bag before and Michael knew this. Brody discovered all that had transpired after he returned to his tent and other campers described what had happened. Should Brody assert a trespass to chattel or conversion claim against Michael ?
Trespass to chattel
- The intent to batter will transfer to satisfy the intent element of trespass to chattel - NOT to conversion, so a trespass to chattels claim will be more successful
B suddenly and violently attacks A with a machete. A evades the machete and kicks B in the stomach causing B to stumble down some stairs and to collide with C who unknown to A was coming up the stairs. The collision causes C to suffer a torn ligament in his knee. If A raises the self-defense would A be liable to C?
A would not be liable to C because A acted reasonably in defending herself against B.
Defendant, driving a car, approaches Plaintiff’s car, and properly steps on the brakes. For reasons unrelated to any negligence on Defendant’s part, her brakes fail to function. Much to her surprise, Defendant’s car continues forward, so she quickly pumps the brakes again, but to no avail. Defendant’s car careens into Plaintiff’s car, injuring Plaintiff. Upon reflecting calmly on Defendant’s brake-failing situation, a better choice for Defendant would have been for her to turn her car quickly to the right. In Plaintiff’s lawsuit against Defendant in which he seeks to recover from her in negligence, will Defendant likely be held liable in negligence?
Defendant will likely not be held liable for negligence
- because in light of her emergency circumstances, she behaved as a reasonable prudent person.
Elizabeth filed a state court action in Texas against her former employer. The defendant properly removed the case to the federal court for the Southern District of Texas. Elizabeth's employment agreement contained a valid forum selection clause through which the parties had agreed that any disputes would be litigated in Oklahoma. After the removal of the case, the defendant moved to dismiss for improper venue. Instead, Elizabeth moved to transfer venue under 28 U.S.C. 1404(a). In response to the parties' motions, the federal court should grant or deny each parties' motions?
- deny the defendant's motion
- grant Elizabeth's motion and transfer the case to Oklahoma
On July 1, a cattle rancher offered to sell his ranch to a dairy farmer for $150,000. The dairy farmer paid the cattle rancher $1,000 to hold the offer open for a period of 30 days. On July 10, the dairy farmer wrote to the cattle rancher, telling him that he could not pay more than $100,000 for the ranch, and that if he would not agree to accept that amount, he would not go through with the deal. The dairy farmer received no reply from the cattle rancher.
On July 29, the dairy farmer mailed a letter to the cattle rancher telling him that he accepted his offer to sell the ranch and enclosed a check for $150,000. The cattle rancher received this letter on August 1.
Has a contract been formed between the parties for the sale of the ranch
No
- because the cattle rancher did not receive the dairy farmer's acceptance within 30 days.
- while option contracts allow the promisee to extend the period of acceptance, the mailbox rule does not apply to option contracts and therefore option contracts are not accepted until the acceptance is actually received by the other party
A martial arts expert with incredibly fast reflexes and catlike agility was walking along the street when a stranger approached her. Stranger knew of Martial Arts Expert’s reputation for speed and wanted to see how fast Martial Arts Expert really was. Stranger was 3 feet in front of Martial arts expert when he attempted to strike her shoulder with his hand. Even though it was moving quickly, Martial Arts Expert saw the stranger’s hand and arm moving as if it was in slow motion. In her mind she was calm and experienced no fear whatsoever. Not only was the stranger laughably slow but she would not have gotten hurt if the strike made contact with her. She merely thought, “I’m just going to move out of the way of his hand because I don’t want any strangers touching me.” She moved out of the way of the strike and stranger fell. Is stranger liable for assault?
Yes.
- assault requires imminent apprehension, not fear ( if a REASONABLE person would think the act is immediately possible )
Lena, the owner of Lena Bookstore, became concerned about shoplifting from her establishment. She purchased a security system that included a magnetic detector at the doors and an automatic locking system for the front door which could lock the front door remotely from Lena's position at the register. The system was also supposed to be integrated so that if the detector registered unpaid for merchandise it would automatically lock the door. This feature did not operate reliably, however, and Lena began to lock the front door herself whenever she saw a customer heading for the door without paying for anything. Lena would then make a quick check to make sure no shoplifting was occurring, and would then unlock the door. One day she triggered the door lock as Parton was heading for the door. Parton became angry at this affront, and refused to allow Lena to look in the briefcase he was carrying. Lena refused to unlock the door. After a tense five-minute standoff, Parton relented and opened his briefcase, showing that he had none of Lena's merchandise. Lena then released the lock on the door. If Parton sues Lena for false imprisonment, who will prevail?
Patron will prevail
- because Lena had no reasonable basis for a suspicion that he had taken any merchandise and therefore will not be able to claim shopkeeper's privilege
what are the requirements to prove negligence under a Res Ipsa Loquitir action?
- the injury/harm/event is of a kind which ordinarily does not occur in the absence of negligence
- the instrument that caused the injury was in the exclusive control of the defendant
On January 1, Sydney files a lawsuit against Stephanie for trespassing on her property located in Texas, in federal court in Texas. Fifty-nine days later, Sydney sends Stephanie a copy of the complaint and two copies of the waiver form via first-class mail, asking for a response within 30 days. Stephanie agrees to waive service before the 30 days are over. How many days does Stephanie have to answer to the complaint?
- 60 days after the waiver request was sent
A young man proposed to his girlfriend, but she was reluctant because of his meager income and lack of job potential. The young man told his father about her reluctance. The father told the girlfriend that if she married his son, he would support them for six months and send his son to a six-month computer technology training school. This was sufficient to dispel her reservations and the two were married very soon after. When they returned from their honeymoon, the father refused to go through with his offer. Although the girlfriend is happy in her marriage, she sued the father for damages.
If the father prevails, what is the likely reason?
The contract was oral
- Statute of frauds requires that contracts in consideration of marriage be evidenced by writing to be enforceable
Intoxicated bar patron fell asleep in a booth at the bar. Security guard lifted the patron up over his shoulder and took him out to a shed behind the bar. He dropped him on the floor of the shed, breaking the patron’s hand in the process. The security guard locked the door and if the patron had woken up he would not have been able to leave the shed. Patron was so inebriated that he did not wake up when this happened. About 4 hours later the security guard lifted the still sleeping patron out of the shed and deposited him on a bus bench. Patron wakes up with a throbbing and swollen hand and asks the guard about it. The guard told the patron what happened. In a false imprisonment suit by patron against security guard, will the patron recover?
Yes.
- The rule of false imprisonment requires being conscious of the confinement OR suffering actual harm during the confinement period
Maria was digging a hole in Lessly's front lawn one day, when she heard someone yelling at her to stop. Maria kept digging until she felt a hand placed gently but firmly on her shoulder. The hand belonged to Lessly, who said, “That is my lawn, and you had better stop. You get off my land; I have called the police.” Upon hearing those words, Maria slapped Lessly's hand away and tried to hit Lessly with her shovel. Lessly grabbed her arm and told her again to get off her land. Maria and Lessly were pushing and shoving one another when Lisa came walking down the sidewalk. Observing the altercation, Lisa rushed forward and knocked Lessly down by hitting her in the head with her briefcase. Maria started to run away, but as he rounded the corner she ran headlong into Sarge, a uniformed police officer answering Lessly's earlier call. The impact nearly knocked Sarge down, but he grabbed Maria and told her to stand still. Maria punched Sarge to try to get free, so Sarge hit Maria with his nightstick, thereby subduing her. If Lessly sues Lisa for battery, who will prevail?
Lessly will prevail
- Lisa had no way of knowing which of the participants in the struggle was the aggressor, and therefore she cannot claim defense of others
About two years ago, Client was a patient of Ophthalmologist. Client alleges that during the time that he was Ophthalmologist’s patient, Ophthalmologist improperly performed LASIK surgery on Client’s eyes. The LASIK surgery was supposed to correct Client’s poor vision. Instead, the surgery was performed skillfully, but resulted in blindness in both eyes, a risk about which Client was never informed and a reasonable person would not have known. If Client had known of the risk of blindness, he would not have opted for the surgery. Client hires Attorney Matthew to sue Ophthalmologist for medical malpractice. Attorney Matthew fails to file the complaint to initiate the cause of action against Ophthalmologist within the applicable statute of limitations. As a result, the court dismisses Client’s case against Ophthalmologist. Client then hires Attorney Becky to represent him in a cause of action against Attorney Matthew for legal malpractice. In the legal malpractice action brought by Client against Attorney Matthew, what duty applies to Attorney Matthew?
Attorney Matthew had a duty to act as the reasonable prudent lawyer under the same or similar circumstances.
Stakeholder is an insurance company incorporated in Alabama with its principal place of business in Florida. It issued a $1,000,000 life insurance policy insuring Maria, a citizen of Texas. After Maria died, claimants to the policy fund are Maria's estate, Betty (a citizen of Alabama) and Claudia (a citizen of New Mexico). Which type of interpleader will be invoked in this case?
Statutory interpleader
- for statutory interpleader, there only needs to be MINIMAL diversity between CLAIMANTS, and the property or money at issue is valued at $500 or more
- for rule interpleader, there has to be COMPLETE diversity between claimants and stakeholder, and the AIC has to be greater than 75k
A retailer entered into an oral contract with an office supply wholesaler to buy 100 file boxes for an upcoming back to school sale at the retailer‘s store. The wholesaler agreed to deliver the file boxes in two weeks at a cost of $4 per file box. A week later, the retailer phoned the wholesaler and asked if she could increase her order to 200 file boxes. The wholesaler agreed. The wholesaler delivered the 200 file boxes as promised, but the retailer accepted only 150 upon discovering that she lacked storage space for all 200.
May the wholesaler recover damages with respect to the 50 file boxes that were not accepted?
No
- The wholesaler may not recover damages. Under the UCC Statute of Frauds, a contract for the sale of goods for $500 or more is unenforceable unless evidenced by a writing signed by the party sought to be held liable. The original contract was for $400 and, thus, was not within the Statute. Whether a modification must be in writing to be enforceable depends on whether the entire contract price as modified is within the Statute. Here, the retailer and the wholesaler modified their original contract to 200 file boxes, bringing the total price to $800.
A man saw two children climbing on the roof of his garden shed and yelled for them to get off his property. The children ignored him, so the man picked up a good size rock, yelled “I said get off,” and threw the rock towards the children. The man deliberately threw the rock high and over the shed, because he just wanted to scare them away. In this he succeeded, and the children screamed and jumped off the roof. Child A landed safely and ran away. Child B landed awkwardly and sprained his ankle. The rock flew over the shed and struck Child C, who was behind the shed and not visible to the man. Child C was looking the other way and did not see the rock coming. What claim does each child have against the man?
Child A - assault claim only
Child B - both an assault and battery claim
Child C - battery claim only
Private boater is out on the water for a leisure day when the weather radio announces the development of a sudden but strong storm in the immediate vicinity of the boater. The weather radio says that all boats in the area must seek immediate cover and be fastened to a dock if possible. Hearing the warning, private boater ties his boat up to the nearest dock. The dock is owned by landowner who sees the boat tie up and decides that he does not want the boat tied to HER dock. Landowner unties private boat from his dock just as the storm approaches and private boat drifts off into the storm colliding with other boats causing damage to other boats. Owners of other boats sue private landowner for damages caused by private boat he refused to let stay on his dock. Is landowner liable for damage?
Yes
- landowner is liable because during private necessity the landowner’s right to exclude people from his property yields to the person claiming necessity’s right to use the property.