TORTS
A 12-year-old child took his father’s car keys, got into the car, started it, and pulled out of the driveway onto a busy street. When the child came to an intersection, he failed to stop at a red light and collided with another car. The other driver was injured.
What is the standard of care that the child most likely owed to the other driver?
The care that would be used by a reasonable, prudent adult.
What is the test from Clearfield Trust?
a. First check if fed has the power to create substantive law –
b. Should they?
1. Uniformity
2. Parties involved
3. would it make the world a better place
A defendant was charged with conspiracy to commit wire fraud, attempted wire fraud, and wire fraud.
May the defendant be convicted of and sentenced for all of these crimes?
Convicted of wire fraud
The element that separates first degree murder from second degree murder:
b. willful, deliberate, and premeditated
P is suing D regarding a car accident in which P was injured. Early in the litigation, P gives D a list of all witnesses to the accident that P knows of, as required by Rule 26(a). If P later learns of another person who saw the accident, P must what?
Voluntarily supplement her earlier disclosure by telling D about the new witness
A corporation produced a chemical agent that inherently presented a high risk of forming a giant green gas cloud if released.
Which of the following facts would be most helpful to the corporation in arguing that the production of the chemical does NOT constitute an abnormally dangerous activity?
A. The chemical is harmless to humans and animals.
B.The chemical is used in the production of a life-saving drug.
C. The corporation adheres to all safety regulations related to the handling of the chemical.
A. The chemical is harmless to humans and animals.
What are the rules for the complaint as laid out in Gillespie?
1. Pleads FACTS not legal conclusions
a. Facts need to show entitled to relief
Two business partners agreed to burn down their dilapidated warehouse, make an insurance claim for the loss, collect the insurance proceeds, and purchase a new building that they would renovate to be an indoor storage facility.
Assuming that the partners’ plan succeeds, when does their conspiracy end?
A conspiracy terminates when the conspirators have achieved the goals of the conspiracy.
When they renovate the new building to be an indoor storage facility.
Professor Martin starts shooting a gun at me, so I shoot him dead. Why do we recognize a defense in that case?
Imperfect right to self defense. self defense in certain circumstances including when the defendant is the initial aggressor but without intent to kill or to seriously injure the Defendant and the defendant escalates the confrontation to a point where it reasonably appears to the defendant to be necessary to kill
What is the balancing test developed from Byrd v. Blue Ridge?
Outcome determinative
Substantial Federal Interest
What is the second restatement for private figures/public concern?
A false and defamatory statement concerning another
An unprivileged publication to a third party
Fault amounting at least to negligence on the part of the publisher
[damages] either “actionability of the statement irrespective of special harm [i.e., per se] of the existence of special harm caused by the publication [i.e per quod]
What are the three ways to get relation back?
15(c)(1)(A): there’s relation back when the state law allows it (borrowing)
15(c)(1)(B): you get relation back when the amendment is about same transaction – most common one
15(c)(1)(C): you get relation back when you’re trying to amend the party
Three robbers were robbing a jewelry store when a victim of the robbery, attempting to resist the crime, fatally shot one of the robbers.
In which of the following jurisdictions, if any, may the surviving robbers be subject to felony-murder liability?
In a proximate-cause jurisdiction.
The proximate-cause approach provides that if the felon proximately caused the death, then the felon can be charged with murder, regardless of the victim's identity or who did the actual killing.
Does conspiracy merge with attempt?
No.
A husband and wife were married in State A and lived there for 10 years before separating. One month later, the wife permanently moved to State B and immediately filed for divorce in a federal court in State B. The wife claims that she is entitled to $300,000 in alimony. The husband appeared in the action and has filed a motion to dismiss for lack of subject-matter jurisdiction. Should the court grant the husband's motion?
A plaintiff filed and served a complaint for copyright infringement One week later, the defendant filed a Rule 12 motion to dismiss for failure to state a claim. The court set a hearing on the defendant’s motion to dismiss for one month later.
In this situation, how should defendant calculate its deadline to file an answer to the complaint?
14 days after the court rules on the defendant’s Rule 12 motion.
An intoxicated motorist struck and killed a motorcyclist. The prosecutor charged the motorist with felony murder.
May the prosecution use voluntary manslaughter as the predicate for felony murder?
No, because voluntary manslaughter inherently requires bodily harm.
In other words, if a felony, by definition, requires bodily harm or imminent threat of bodily harm, it cannot support felony-murder liability.
What is a performative consent standard?
An affirmative consent requirement
“Consent” means a person’s positive agreement, communicated by either words or actions, to engage in sexual intercourse or sexual contact.
D is served with complaint June 1. D files his responsive pleading five days later. How many days does D have to file his answer if his motion is denied two days later?
June 21
What are the policy reasoning behind strict liability?
Compensation
Insurance
Least Cost avoider
Non-Reciprocal risks
A plaintiff sued a county government for negligence. The county’s answer to the complaint claimed that the county was immune from suit. In the event that the court concluded the county was not immune, the county denied each substantive allegation pertaining to the plaintiff’s negligence claim. After the close of discovery, the plaintiff moved for summary judgment. The plaintiff’s only argument at summary judgment was that the county was not immune from suit as a matter of law.
Is the plaintiff’s motion for summary judgment proper?
No because the defendant has to affirmatively show that there are no genuine issue of material fact
What is the natural and probable consequence doctrine?
Accomplice not only guilty of the offense she intended to facilitate or encourage but ALSO for any reasonably foreseeable offense committed by the person she aided.
What is the test MPC uses to satisfy the actus reus of attempt?
What is the substantial step test?
What is the difference between claim preclusion and issue preclusion?
Issue preclusion applies to issue and not claims.
The issue raised in subsequent litigation is identical to an issue litigated in prior litigation
claim preclusion can bar claims that were not raised in the first litigation b/c those claims should have been raised.
Issue preclusion can only bar issues that were actually litigated in the previous action.