Law Final Study Guide

‘ Law Final Study Guide Procedural History:  Flores’ statutory beneficiaries’ respondents in trial court sued Black and Wilhelm, and the jury found that they negligently caused Flores’ death and were equally responsible.  Only Wilhelm appealed, and it was then brought to the court of appeals of Texas. The court summarized respondents’ claims as failure to have a reasonable safety program, failure to ensure Flores was tested for bee sting allergy, failure to provide proper protective equipment, failure to warn Flores of the dangers of bees, and failure to provide Flores with proper and timely medical attention.  The case was then brought to the Texas Supreme Court for review. Facts:  Petitioner Curtis Wilhelm kept bees as a hobby, but he decided to sell his 14 hives to John Black, who returned the next day with Alejandro Mercado, his employee, and Santos Flores Sr., who was a friend of his to load the hives to take them away.  Black provided protective gear to himself and his men  Wilhelm accompanied the three men, wearing his own gear, but did not assist them  There is no evidence that Wilhelm controlled Black’s work of had the right to do so. Black directed the work of Mercado and Flores.  After several hives were loaded, Flores walked away, which didn’t cause much alarm. When he emerged a few minutes later, his veil was open and was yelling for help, complaining of being stung. Within a few minutes Flores died from a reaction.  Flore’s statutory beneficiaries are now seeking damages for negligence. Issue: Did Wilhelm negligently fail to warn Flores of the dangers of working with bees or to protect them from being stung? Holding: No, Wilhelm did not negligently fail to warn Flores because he was simply just the seller of the bees, and not in care. Therefore, he did not owe him a duty of care. Rationale:  The court decided that there was not a breach in the duty of care  Had Wilhelm hired Black as independent contractor, Wilhelm would not owe Flores a duty of care because Black would be in control. This is supported by Dow Chemical v. Bright. 89 S.W.3d 602, 605 (Tex.2002).  As the occupier of the premise where the beehives were held, Wilhelm would also not owe Flores care of duty because the danger was obvious. This is supported by Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex.2004). Disposition: Wilhelm owed Flores no duty as alleged by respondents. The Texas Supreme Court granted Wilhelm’s petition for review, and without hearing argument, reversed the judgement of the court of appeals and render the judgement that the respondents take nothing. Contracts A contract is promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty  Contracts are enforceable promises recognized by the courts, and therefore enforced by the courts Elements of a Contract 1. Mutual assent: offer + acceptance 2. Consideration: something of legal value given in exchange for a promise (money, forbearance) 3. Capacity to understand the promises being made (age, intoxication, mental competence) 4. Legal purpose: must be free of criminality (lawful objective) Statute of Frauds  Requires all contracts to be in writing in order to be enforced o Sale of real estate o Leases for a year o Surety o Terms cannot be performed within one year from formation o Sale of goods priced at $500 or more o Contracts in consideration of marriage o Promises by executor and administrator to pay debts of deceased Fraudulent Misrepresentation  A false statement that causes or induces someone to enter into a contract  Under contract law, a plaintiff can recover compensatory damages against a defendant when a court finds that the defendant has committed fraudulent misrepresentation  Courts will typically find that a defendant has committed fraudulent misrepresentation when six factors have been met Six Elements of Fraudulent Misrepresentation 1. False representation 2. The misrepresentation is of a “material” fact 3. The maker of the false representation “knows” that it is false or has no reason to believe that it is true 4. The misrepresentation is made with the intent to induce the other party to do something or refrain from doing something 5. The other party justifiably relies on the misrepresentation 6. The reliance on the misrepresentation causes the other party to suffer damages Statement of Question: fact pattern used to identify legal analysis, determine whether a fraudulent misrepresentation exists  List each element of fraudulent misrepresentation, next to each element use the specific facts that are relevant to that element to determine whether it can be supported by facts  At the end summarize if whether fraudulent misrepresentation will be established in this case Torts Tort: civil wrongs, matters of which you can sue  Intentional torts: the act is intended, battery, protect from unwanted contact  Unintentional torts: the act is not intended, the act stems from carelessness, negligence Elements of a Tort 1. Breach: violation of a law or contractual duty 2. Proximate cause: an actual cause that is also legally sufficient to support liability 3. Actual cause: a factor without which the result in question could not happen 4. Damages: a remedy in the form of monetary compensation to the harmed party Battery Elements  Intentional  Harmful or offensive contact  With the body of another person  Without consent  Resulting in physical injuries Negligence Elements  In a negligence case Plaintiff must prove that Defendant o Owed the plaintiff a duty of care o Breached the duty of care owed to the plaintiff o That the breach of the duty of care was the direct and foreseeable or “proximate cause” of the injury suffered by the plaintiff o That the plaintiff suffered injuries Duty of Care: legal obligation imposed upon an individual requiring that the individual engage in “reasonable” behaviors  Often driven by relationship of: o Hospital owes duty of care to patient o Shop/Restaurant/Hotel owner owes duty of care towards customer o Fellow motorists owe duty of care toward each other  Breach of Duty: failure to meet the objectively reasonable standard of care o Injury: plaintiff must suffer the type of “harm” that the Court deems recoverable injury for the breach of duty (physical injury, medical expenses, loss of wages)  Proximate Cause: harm must be direct and foreseeable result of the breach, breaks duty of care, causes end result Liability  Strict liability: liability imposed on those who own, operate or control ultra-hazardous instrumentalities for harm caused by the ultra-hazardous instrumentality o There is no need to demonstrate fault or carelessness in use, control, or operation o Elements are 1. Damages 2. Involvement in the ultra-hazardous (ex. Having a wild animal as a pet)  Product Liability: manufacturer is liable for injuries caused by product when product is used in accordance with manufacturer’s guidelines, the use must be foreseeable o Three Types 1. Manufacturing defect (ex. Using wrong ingredient by accident) 2. Design defect (ex. Recipe is flawed all around) 3. Failure to warn/properly instruct consumer Malpractice  Type of negligence, professional negligence  The tort committed when a professional fails to properly execute their duty to a client  The duty of a professional to a client is generally defined as the duty to follow generally accepted professional standards, however the other elements of a tort must also be shown Real Property Real Property  Forms of ownership  Interests in land Real Estate  The land and the buildings on it  Property consisting of land or buildings Real Property Law Includes  Land: everything natural, natural elements (ex. Soil, surface water, ground water, air space, minerals, rocks, vegetation)  Fixtures: intended to be “permanent” improvements to the land such as structures, pavement, permanent statuary  Rights of Ownership: the right to own, posses, use, encumber, exclude o Often referred to as a bundle of rights because they can be dealt with separately o Areas that are difficult to untangle o Ex. Mortgage with house as collateral Four Forms of Ownership for Real Property in NYS  In Severalty/Sole: ownership by one person o One individual or corporation o 100% share/interest is given to one owner  Tenants in Common: 2 or more owners o It is possible to have equal or unequal shares/interest in the property o No rights of survivorship exists between the owners o If one co-owner dies, his share in the real property will pass to the deceased’s estate (family), NOT the co-owners  Joint Tenants with Rights of Survivorship: 2 or more owners o All owners included on same deed o All owners own an equal/share in the real property o All owners have the right to possess the whole property o The four unities (time, title, interest, and possession) must be present to create a joint tenancy with rights of survivorship o Co-owner has the right of survivorship in the event another co-owner dies (if one dies, other inherits whole)  Tenants by the Entirety: co-owners are legally married to each other, spouses o As a married couple any court order that partitions or distributes this interest in real property must consider the factors for equitable distribution o These co-owners are not going to be distributed 50-50 just because there are two of them o The court will consider age, length of marriage, health of parties, etc. Interests in Land: there are four types of interest that one can have when it comes to real property  Freeholds: ownership, distinguished by duration o Limits placed on the duration of ownership  Fee simple absolute: forever- there are no limits placed on duration of ownership  Life estate: for a life time- ownership is to last as long as the named “measuring life” lives  Free simple determinable/conditional: until “X” happens or so long as “Y” continues- conditional  Leaseholds: possession o How duration is determined  Lease (fixed tenancy): a set date and a set end date exist at the beginning  Week to week, month to month, year to year (Periodic Tenancy): the tenancy renews for another period unless the landlord or tenant decide to terminate the tenancy by providing one fully period of notice, continues indefinitely  At will: by agreement this tenancy continues until further notice, either party can terminate with 30 days notice  Intangible interests: use of property o Basis of the use  Easement: the right to use land that belongs to another (right of way)  License: permission to use the land of another  Profit: an agreement between a landowner and a harvester of natural resources to harvest the natural resources and repay the landowner with a percentage of the profit  Future interests: interests that either can be or will be transformed into ownership o The right to receive real property some time in the future, either upon a particular date or upon the occurrence of an event, ex.  Remainder: getting title upon the death of the person with a life estate, the named beneficiary of this future interest is called a remainderman  Reverter: title returns to the grantor or grantor’s heir upon failure of a condition Encumbrances: anything that diminishes or lowers the monetary value of real property, ex.  Mechanics liens, unpaid mortgages, unpaid taxes, unsatisfied judgments, deed restrictions, violations of building code, encroachments, easements  Mechanics liens- lien that can be placed on real property by anyone who put labor into a property who felt they weren’t compensated  Unpaid mortgages- open loan on property lowers what property is worth  Unpaid taxes- threaten ownership  Unsatisfied judgements- you owe someone unrelated to property and you don’t pay judgement that makes you pay is cloud against property  Deed restrictions- limitations are encumbrances  Violations of building code- similar to deed  Encroachments- intrusion on one’s property  Easement- the right to cross or otherwise use someone else’s land for a specified purpose o Utility easement- areas of property that were defined for use by utility companies when the property was first put on a plot o Appurtenant easement- the right to use adjoining property that transfers with the land The Law of Wills Wills: the legally recognized statements of how an individual’s property is to be passed after one’s death, the three types are  Nuncupative (oral) o Recognized under special circumstances  Holographic (written by the testator in the testator’s hand writing) o Usually lacks witnesses and formal language  Formal (follows all of the rules for will making) Types of Bequests made in wills  Specific bequest  General bequest  Residuary bequest Revocation of Wills  Revocation clause is signed by testator in presence of two disinterested witnesses  Signing a codicil (modification to a portion of the will) in presence of two witnesses  Signing a new will with a revocation clause  Physical act by the testator in the presence of two witnesses Requirements for a Formal Last Will and Testament  Testamentary capacity  At least 18 years old  Written document that declares testator’s intent to declare and publish this document as his Last Will and Testament  Signed by the testator at the end thereof and in the presence of at least two distinguished witnesses both over the age of 18  Each witness must attest to the testator’s capacity and signature in his presence Intestate Succession  Process describes the “state” crafted plan to distribute the estate of anyone who dies without a valid will o In NY the surviving spouse is entitled to the first $50,000 plus 50% of the residue (remainder) o The other 50% of residue goes to surviving issue (child) by representation  Intestate Succession Flow Chart o Did “D” die leaving a surviving spouse  If yes, then the follow up question is, did “D” leave surviving issue  If the answer is “no” then everything goes to surviving spouse  If answer is yes then the first $50,000 plus 50% residue to spouse, other 50% to surviving issue by representation  If no, then ask if there are surviving parents  If no surviving parents, go to siblings, issue of sibling, grandparents, issue of grandparents, cousins, second cousins, then ESCHEAT (goes to state) Issue: a person’s child or other lineal descendants such as grandchildren and great-grandchildren  It does not mean all their heirs, but only direct bloodline  While a child or children are alive, issue refers only to them, but if they are deceased then it will apply to the next living generation unless there is language in the document which shows it specifically does not apply to them Common Will Clauses  Declaration and Revocation Clause: these clauses tell the reader that under no uncertainty, the document is intended as your will, the clause revoking the previous wills ensure the reader that they have your final wishes in hand  Family information: this is a good place to identify who is in your immediate family for reference later in the document  Payment of Debts and Taxes: your debts and taxes must be paid first before your personal representative can give away your assets  Specific Gifts: this is where you list specific tangible items you would like to give to a specific person  Residuary gifts: anything not specifically listed anywhere else in the will is covered in this clause, it serves as a “catch-all” in case anything is missed due to any purchases or sales you may make after drafting your will  Personal Representatives: a clause is set where you name the main person who is responsible for following the instructions you give in your will, referred to as the “executor” or “fiduciary”  Minors: courts will generally avoid giving property directly to children, the Uniform Transfer to Minors Act enables an adult custodian to hold the funds until the child is of age  Guardianship: nominate someone to take care of your children  Administrative Provisions: explains in detail what your personal representative can and can’t do with your assets during administration of your estate o How personal representative should invest assets o The power to pay taxes and debts o What happens if husband and wife die simultaneously  Signatures, Witnesses, and Self-Proving Affidavit o Self-proving: statement signed by witnesses indicating that all state procedures were followed, you were aware of signing, and that you willingly did so When You Die With a Will  Testate: having made a valid will before one dies  Probate: the official proving of a will, establish the validity of the will  Executor: person appointed by testator to carry out the terms of their will When You Die Without a Will  Intestate: not having made a will before one dies  Administration: management and settlement of estate of an intestate, usually done under court supervision by appointing a person duly qualified and legally appointed  Administrator: person appointed in the case of administration of estate, responsible for administering and settling the estate pursuant to the state statutory rules