Torts
A defendant is liable for the full extent of the plaintiff’s injuries that may be increased because of the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.
What is the "eggshell-skull" rule?
What requirements must be met for the opinion of a lay witness to be admissible?
The opinion must be:
(i) Rationally based on the perception of the witness; and
(ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
When a party introduces part of a statement, an adverse party may compel the introduction of an omitted portion of the statement if, in fairness, it should be considered at the same time, such as when the omitted portion explains or clarifies the admitted portion. The adverse party may do so over a hearsay objection.
This does not apply to police officers who act in good faith on either (i) a facially valid warrant later determined to be invalid or (ii) an existing law later declared unconstitutional.
What is the exclusionary rule? (this is the good-faith exception)
Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.
The restriction must:
(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.
What are the elements for strict products liability?
i) The product was defective;
ii) The defect existed when it left the defendant's control; and
iii) The defect caused the plaintiff's injury when the product was used in a reasonably foreseeable way.
When may a judge take notice of an adjudicative fact?
The fact is not subject to reasonable dispute because:
(i) It is generally known within the territorial jurisdiction of the trial court; or
(ii) It can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?
(i) The declarant must be unavailable; and
(ii) The defendant must have had a prior opportunity to cross-examine the declarant.
When executing either a search or an arrest warrant, a police officer must generally announce his purpose before entering. Name the rule.
What is the "knock and announce" rule?
When is voluntary intoxication a valid defense to a crime?
Voluntary intoxication is a defense to a specific intent crime if the intoxication prevents the formation of the required intent. Under the MPC, it is a defense to crimes requiring a mental state of purposefully or knowingly when the intoxication prevents forming that mental state.
What is the "zone of danger" rule for negligent infliction of emotional distress (NIED)?
A plaintiff can recover for NIED from a defendant whose tortious conduct placed the plaintiff in harm’s way if she shows that:
i) she was within the “zone of danger” of the threatened physical impact (feared for her own safety); and
ii) the threat of physical impact caused emotional distress (usually via physical symptoms).
A rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.
What is the "bursting bubble" approach to burden shifting?
When may "work product" be subject to discovery?
Work product is not subject to discovery unless the party seeking disclosure
(i) Demonstrates a substantial need for the information; and
(ii) Cannot obtain the information by any other means without undue hardship.
What is the generally permitted scope of a warrantless search made incident to a lawful arrest?
A lawful arrest justifies a warrantless contemporaneous search of the person arrested and his “wingspan”
Name and define four mental states defined by the MPC.
Purposely—Defendant’s conscious objective is to engage in the conduct or to cause a certain result.
Knowingly/willfully—Defendant is aware or knows that the result is practically certain to occur based on his conduct.
Recklessly—Defendant acts with a conscious disregard of a substantial and unjustifiable risk.
Negligently—Defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct (i.e., a gross deviation from the standard of care)
The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.
What is the traditional rule for contributory negligence?
What two requirements must be met to use a conviction as impeachment evidence if more than 10 years have elapsed since the latter of the conviction or release from confinement?
The conviction is admissible if:
(i) Its probative value substantially outweighs its prejudicial effect; and
(ii) The proponent gives the adverse party reasonable written notice of intent to use the evidence.
What four requirements must be met for an expert witness to offer opinion testimony?
(i) The witness is qualified as an expert by knowledge, skill, experience, training, or education;
(ii) The testimony is based on sufficient facts or data;
(iii) The testimony is the product of reliable principles and methods; and
(iv) The witness applied the principles and methods reliably to the facts of the case.
What are the requirements of a valid arrest warrant?
It must be issued by a detached/neutral magistrate upon finding of probable cause and describe with particularity the defendant and the crime.
What are the four elements of common-law conspiracy?
Common-law conspiracy is:
(i) An agreement;
(ii) Between two or more persons;
(iii) To accomplish an unlawful purpose;
(iv) With the intent to accomplish that purpose.
Name the three types of entrants to whom a possessor of land owes a duty and and the duty owed to each.
1. Trespasser - A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.
2. Licensee - A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her.
3. Invitee - A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.
What are the two ways that a criminal defendant may "open the door" for the prosecution to introduce bad character evidence about the defendant?
The defendant opens the door to evidence of his own character if the defendant introduces evidence of:
(i) The defendant's good character; or
(ii) The victim's bad character.
When is character evidence admissible in civil cases, and in what forms?
When character evidence is an essential element of a claim or defense.
When admissible in a civil case, character may be proved by reputation, opinion, and specific instances of a person’s conduct.
What are three instances in which specific acts are admissible in criminal cases?
1. When character is an essential element of a charged crime (or of a defense) and a defendant offers specific acts inconsistent with the crime;
2. For non-propensity purposes (e.g., “MIMIC” evidence (Motive, Intent, absence of Mistake, Identity, or Common plan)); and
3. When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying.
What are the four elements of kidnapping?
Kidnapping is the:
(i) Unlawful;
(ii) Confinement of a person;
(iii) Against that person’s will;
(iv) Coupled with either the movement or the hiding of that person.