Civil Rights

Tort liability may be imposed when one party violates another party’s civil or political rights, e.g., barring a party from their right to vote.
Recovery may be through statute or common law. Continue reading “Civil Rights”

The Community Property System

Eight states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington) have a system of community property. The system’s basic assumption is that the husband and wife contribute equally to the economic achievements of the marriage.

A. Effect

All property acquired during the marriage by either spouse is community property owned jointly by husband and wife. This has its greatest effect when a marriage is dissolved or when property is sold.

B. Strong Presumption That Property Acquired or Possessed During Marriage Is Community Property.

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Marital Interests

How are a man and woman’s property interests affected after they enter into a marriage? At common law, a married woman occupied a lowly legal position. This was reflected in the treatment of marital estates. Significant changes in a married woman’s status did not take place until the nineteenth century.

A. Husband’s Interest in Wife’s Property

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Rights And Responsibilities Of Cotenants

(Applicable To The Three Main Types Of Cotenancies)

A. Right of Possession

Each cotenant has the right to possess the entire property (i.e., unity of possession). No cotenant has the right to exclusive possession of the premises.

B. Possession by One Cotenant

Because there is unity of possession, the cotenant in sole possession does not ordinarily have a duty to account (i.e., to pay the other cotenant one-half the rental value of the property).
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Concurrent Ownership

Situations arise where two or more persons have simultaneous rights of present or future possession. There are three main types: the joint tenancy, the tenancy in common, and the tenancy by the entirety.

A. Joint Tenancy

Each joint tenant has an equal interest in the whole property.
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Final Judgment Rule

A. Generally

1.
For the most part, only final judgments are appealable.

2.
A final judgment is reached when, on the merits, litigation ends, leaving only the execution of judgment to be completed.

3.
Substance, not form, determines if a judgment is final.

B. Interlocutory Appeals Exception

Interlocutory appeals are allowed in cases involving:
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Scope of Review

A. Reviewable Issues

Generally, appellate courts only review issues of law, not factual findings.

B. Jury Trials

1.
An appellate court must uphold a verdict supported by substantial evidence.

2.
An appellate court cannot weigh evidence or pass on witness credibility.

3.
An appellate court cannot disturb factual findings.

C. Nonjury Trials

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Employment Contract and Unconscionability

Al Safin considers a number of important contract principles in an employment contract context. While reading the case, consider the following questions:
1. What is “at will” employment? Was that the nature of employment in this case?
2. What is the doctrine of unconscionability and what differences exist between procedural and substantive unconscionability?
3. Which parts of the employment contract were unconscionable? Make sure you can state why they were unconscionable.
4. Why wouldn’t the court sever the unconscionable portions of the contract? Would you have found likewise? Why and why not?
5. Why does the court not address the procedural aspects of the contract?
Contracts 61
6. Think back to the discussion of adhesion contracts.

A Contract of Adhesion

In the case Maddox v. Northern Natural Gas Co., (citation) the court lays out the traditional rule for determining whether a valid contract exists:
To constitute a contract, there must be an offer by one party and acceptance by the other party… In order that a contract may be valid, it is essential that the minds of the parties meet upon all of the essential elements of the contract sought to be enforced, and the acts to be done must be clear and unambiguous… Continue reading “A Contract of Adhesion”

Discovery

Discovery is the obtaining of information, prior to trial, from opponents and witnesses regarding matters that are relevant to the cause of action.

A. Policies

1. Goals

a. Preserve evidence when a witness will not be available for trial.

b. Narrow the issues that will be introduced at trial.

c. Control the course of the trial and prevent trial delays and surprises.

d. Promote just and informed settlements.

2. Concerns

a. Control costs of discovery

b. Prevent use of discovery as a method of one party imposing unreasonable costs on another.

c. Prevent discovery as a method of harassing the other party.

d. Prevent parties from gaining evidence through the hard work of others.

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Defamation

A. COMMON LAW DEFAMATION: LIBEL AND SLANDER
MELVIN M. BELLI v. ORLANDO DAILY NEWSPAPERS
389 F.2d 599 (1967)
WISDOM, Circuit Judge.
This action for damages for libel and slander is based on a false statement relating to Mr. Melvin Belli. Belli, an attorney of national prominence, is well known in the legal profession for his pioneering in the development of demonstrative evidence as a trial tactic and his success in obtaining large judgments for plaintiffs in personal injury suits. He is well known to the general public because of his representation of Jack Ruby and others in the public eye.
In March 1964 Mr. Leon Handley, an attorney in Orlando, Florida, in a conversation with Miss Jean Yothers, a columnist for the Orlando Evening Star, repeated a story he had heard concerning Belli. Handley told Yothers that the Florida Bar Association had invited Belli to serve as a member of one of the panels on the program of the Association at its 1955 Convention in Miami Beach. Belli agreed, with the understanding that ‘since there were no funds provided in the budget for payment per se for his contribution as a lawyer to the program the Florida Bar instead would pick up the hotel tab for himself and his wife during their stay.’ According to Handley, after Mr. and Mrs. Belli left Florida, the Association discovered that the Bellis ‘ran up a bunch of (clothing) bills’ which they charged to their hotel room. [FN] The derogatory portion of the story was admittedly false: the Bellis had not charged any purchases to their hotel account. Unfortunately for all, Jean Yothers reported, with embellishments, this nine-year old story in her gossip column in the Orlando Evening Star for March 19, 1964. She commented, in part: ‘* * * Oops. * * * the plan backfired on the Florida Bar * * * (Mr. Belli and ‘his well-dressed wife’ had charged) clothing bills amounting to hundreds of $s * * * to their hotel rooms. * * * The Florida Bar had been taken. * * * After all, that was the plan.’ [FN]: The entire story, as recited in the complaint, is as follows:

The article appeared in the Orlando Evening Star under the title ‘On the Town’ by Jean Yothers and headed ‘Florida Bar Got the Bill’. The full text is as follows:
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NUISANCE

A. PRIVATE NUISANCE
150 Law Masters Series
.
MORGAN et ux.
v.
HIGH PENN OIL CO. et al.
Supreme Court of North Carolina (1953)
* * *
[The amended complaint] alleges in detail that the plaintiffs own and occupy * * * nine acres [of land]; that the nine acres adjoin the tract on which the [High Penn] oil refinery stands; that the Southern Oil Transportation company owns the tract which contains the oil refinery; that the oil refinery was constructed and is operated by the defendants acting jointly; that the oil refinery is so constructed and operated as to constitute a nuisance in that it substantially pollutes the atmosphere of the entire neighborhood and thus injuriously affects the plaintiffs in the use and enjoyment of their land; that the defendants persist in maintaining the nuisance after notice from the plaintiffs to abate it; and that the plaintiffs will suffer an irreparable loss of their property rights if the nuisance is not abated. The complaint prays for temporary damages and an abatement of the alleged nuisance by injunction. * * *
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Products Liability

A. NEGLIGENCE
Donald C. MacPherson, Respondent, v. Buick Motor Company, Appellant.
New York Court of Appeals (1916)
Cardozo, J.
The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed. He was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. * * * The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser.
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Causation

A plaintiff’s proof of causation entails two points: cause in fact, and proximate, or “legal” cause.

(1) Cause in Fact
Cause in fact represents the quite sensible requirement that the plaintiff must prove that the defendant’s acts or omissions contributed in some substantial degree to the plaintiff’s harm. By “substantial” degree we mean that the plaintiff has to prove that the defendant was solely responsible for the harm. Rather, the defendant’s acts need only have been a “substantial factor” in the plaintiff’s injury.
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Breach

An actor is in “breach” of his duty to exercise reasonable care when his acts or omissions to act fall below the “reasonable man” standard and another or his property is put at an unreasonable risk of harm as a result thereof. There are diverse descriptions of what “breach” consists of, and how its presence or absence can be determined. Respected Judge Learned Hand took his turn in trying to evaluate “breach” in the context of a lawsuit arising from the claimed negligence in having a barge’s “bargee”, the individual with responsibility to attend to the safety of the barge, be away from the barge for an extended time.
UNITED STATES et al. v. CARROLL TOWING CO., Inc., et al.
Circuit Court of Appeals, Second Circuit, 1947
L. HAND, Circuit Judge.
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Duty

What do we mean by “duty”? While this question is still debated, the majority of courts find that one owes a duty to those persons whom one could foresee would be put at an unreasonable risk of harm should the actor not act with reasonable care (i.e., as would a reasonable person under the circumstances). Thus, for example, an on-duty lifeguard at a swimming pool would owe a duty to the swimmers to have them remain in his eyesight. In contrast, with regard to the swimming pool activity at least, the lifeguard would not owe a duty to the operator of the poolside snack canteen.
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Negligence

Depending upon the proclivities of your professor, the law of negligence could very-well constitute the largest of the tort subjects treated in your first-year course.

In its many centuries of development, tort law has gone through many stages. In earlier times, the rule was simple: a man was responsible for the consequences of his acts. His intent might be innocent or even laudable, such a snatching a child from the front of a runaway horse but thereby dislocating the child’s wrist, or throwing a rock to disable a marauder, only to miss and damage the property of a third-part. In both cases, at early common law, the actor would be liable for the harm.
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