1L Substantive Law Questions (Get your BLL on ITT) Forum

[Swimp]

Anybody have the BLL for Primary Assumption of Risk and Secondary Assumption of Risk from Torts?

Our prof taught us the rule from Meistrich, which basically eliminates real assumption of risk.

Primary: defendant had no duty
Secondary: plaintiff was contributorily negligent

Almost all modern assumption of risk doctrine has followed this approach as courts have become more accepting of paternalistic tort law.

This is pretty much how I learned it, plus the fact that secondary assumption of risk has been subsumed by the spread of the comparative negligence standard in most jurisdictions .

[shifty_eyed]

let's talk about the summary judgment trilogy

what do i need to know about the burden of proof and the burden of persuasion when the moving party is the plaintiff? Defendant?

TIA

[Easy-E]

RAP question. O conveys to A for life, then to A's first child and his/her heirs (A has no children at time of conveyance)

So A has a life estate, and A's children have a continent remainder in fee. I'm trying to get my head around why the RAP doesn't affect A's children. Is it because they don't exist at the time of conveyance, thus we can kill off A, and an interest in the children clearly fails within 21 years?

[Mal Reynolds]

RAP question. O conveys to A for life, then to A's first child and his/her heirs (A has no children at time of conveyance)

So A has a life estate, and A's children have a continent remainder in fee. I'm trying to get my head around why the RAP doesn't affect A's children. Is it because they don't exist at the time of conveyance, thus we can kill off A, and an interest in the children clearly fails within 21 years?

I think you're forgetting that the RAP allows for two possibilities for a future interest to be valid. It has to either 1. vest, or 2. forever fail to vest. In the case of A's children, that seems fine. Even if O was conveyed to all of A's children, that would still be a valid clause according to the RAP. The two possibilities below would be the same in either case.

Since the interest is limited only to A's first child, it makes it a closed and certain class. So there are only two possibilities.

1. A has no children. Therefore A's non-existent child won't have any heirs. So the interest will forever fail to vest and revert back to O.

2. If A has children, then the interest will vest in his first born. Since it's logically impossible for A to have a second born before his first born, or for him to have children and never have a first born, he will always be a valid measuring life until his first child comes into existence. The interest will vest at the time of A's death and the RAP won't apply since A was a measuring life, so we don't need to count 21 years past A's death.

It's uncertain whether A's grandchildren from his firstborn son will have a vested interest since A could die, then since A's firstborn wasn't a measuring life at the time of the drafting of the will, he could have another heir 21 years after any valid life in being/measuring life is alive.

HTH, sorry if I was unclear.

[Mal Reynolds]

let's talk about the summary judgment trilogy

what do i need to know about the burden of proof and the burden of persuasion when the moving party is the plaintiff? Defendant?

TIA

The trilogy's main headline is to grant SJ more often to dispense with lawsuits that don't have sufficient proof.

Celotex provides for framework for burden of production, which is what SJ evaluates. The jury always evaluates burden of persuasion, unless it's a bench trial.

If the movant for SJ has the burden of production, then it has to produce clear and convincing (that might not be the right terminology) evidence that the jury could only find for the moving party. If the nonmoving for SJ has the burden of production, then all that it has to do, according to Celotex, is to affirmatively show in the record that there isn't any dispute of material fact-in other words that the opposing party hasn't met it's burden of production. All this has to be is more than a conclusory statement about the evidence.

Anderson v. Liberty Lobby established that SJ and JMOL are the same standard to grant or deny, but the difference is what type of evidence has been furnished. SJ evidence is mostly paper/video/affidavits, since it hasn't been presented live at trial. JMOL has been presented live at trial. That sometimes gives judges the incentive to not grant SJ and wait to grant JMOL since the evidence could play out differently at trial. However this could cut the other way since trial allows for cross-examination and the discrediting of witnesses. Therefore a plausible case could be that the judge denies SJ, then also denies JMOL since he could rule the jury has a legally sufficient basis for deciding the case either way, due to witness credibility issues. So it's not really clear exactly the difference between JMOL and SJ really should be and how it plays out at trial.

Matsushita established that evidence for the party with the burden of production has to rise above mere possibility, tending to exclude alternative explanations. So it was a precursor to Twiqbal in a few ways.

HTH, basically courts will have a greater incentive to grant SJ after the trilogy.

[Easy-E]

RAP question. O conveys to A for life, then to A's first child and his/her heirs (A has no children at time of conveyance)

So A has a life estate, and A's children have a continent remainder in fee. I'm trying to get my head around why the RAP doesn't affect A's children. Is it because they don't exist at the time of conveyance, thus we can kill off A, and an interest in the children clearly fails within 21 years?

I think you're forgetting that the RAP allows for two possibilities for a future interest to be valid. It has to either 1. vest, or 2. forever fail to vest. In the case of A's children, that seems fine. Even if O was conveyed to all of A's children, that would still be a valid clause according to the RAP. The two possibilities below would be the same in either case.

Since the interest is limited only to A's first child, it makes it a closed and certain class. So there are only two possibilities.

1. A has no children. Therefore A's non-existent child won't have any heirs. So the interest will forever fail to vest and revert back to O.

2. If A has children, then the interest will vest in his first born. Since it's logically impossible for A to have a second born before his first born, or for him to have children and never have a first born, he will always be a valid measuring life until his first child comes into existence. The interest will vest at the time of A's death and the RAP won't apply since A was a measuring life, so we don't need to count 21 years past A's death.

It's uncertain whether A's grandchildren from his firstborn son will have a vested interest since A could die, then since A's firstborn wasn't a measuring life at the time of the drafting of the will, he could have another heir 21 years after any valid life in being/measuring life is alive.

HTH, sorry if I was unclear.

No, that's very clear. Thanks man. So basically it says "yeah this is valid because it is never going to happen", for this case at least? Whats the actual ramifications of this? Sure, your interest is still valid, it just will never ever vest? Though I had this down, but I'm still getting throw for a loop. Here's another question...


O conveys to A for life, then to B and her heirs, but if B uses the property for anything but farming, to C and his heirs

A - life estate
B- vested remainder in fee subject to executory limitation
C - Shifting executory interest in fee simple

So lets say A dies, B has present possessory estate, does B now have a fee simple subject to condition subsequent? I keep getting mixed up and wanting to say B's future interest is a "vested remainder subject to condition subsequent" but I guess that isn't a thing until its presently possessed?

[Mal Reynolds]

let's talk about the summary judgment trilogy

what do i need to know about the burden of proof and the burden of persuasion when the moving party is the plaintiff? Defendant?

TIA

The trilogy's main headline is to grant SJ more often to dispense with lawsuits that don't have sufficient proof.

Celotex provides for framework for burden of production, which is what SJ evaluates. The jury always evaluates burden of persuasion, unless it's a bench trial.

If the movant for SJ has the burden of production, then it has to produce clear and convincing (that might not be the right terminology) evidence that the jury could only find for the moving party. If the nonmoving for SJ has the burden of production, then all that it has to do, according to Celotex, is to affirmatively show in the record that there isn't any dispute of material fact-in other words that the opposing party hasn't met it's burden of production. All this has to be is more than a conclusory statement about the evidence.

Anderson v. Liberty Lobby established that SJ and JMOL are the same standard to grant or deny, but the difference is what type of evidence has been furnished. SJ evidence is mostly paper/video/affidavits, since it hasn't been presented live at trial. JMOL has been presented live at trial. That sometimes gives judges the incentive to not grant SJ and wait to grant JMOL since the evidence could play out differently at trial. However this could cut the other way since trial allows for cross-examination and the discrediting of witnesses. Therefore a plausible case could be that the judge denies SJ, then also denies JMOL since he could rule the jury has a legally sufficient basis for deciding the case either way, due to witness credibility issues. So it's not really clear exactly the difference between JMOL and SJ really should be and how it plays out at trial.

Matsushita established that evidence for the party with the burden of production has to rise above mere possibility, tending to exclude alternative explanations. So it was a precursor to Twiqbal in a few ways.

HTH, basically courts will have a greater incentive to grant SJ after the trilogy.

Sorry, this is kind of wrong, in re: burden of persuasion. Burden of persuasion always remains with the moving party, but after the moving party has met it's burden of production when moving for SJ the opposing party can dispute that. In either case above, the movant can meet its burden of production as to whether there is a material dispute, then the other party will have a chance to dispute that argument. The judge should only rule in favor of the SJ if there is no adequate evidentiary basis for the jury decide either way.

[Easy-E]

Anyone care to enlighten me on title theory vs. lien theory?

[Mal Reynolds]

No, that's very clear. Thanks man. So basically it says "yeah this is valid because it is never going to happen", for this case at least? Whats the actual ramifications of this? Sure, your interest is still valid, it just will never ever vest? Though I had this down, but I'm still getting throw for a loop.

We don't have a property test until next quarter so that future interests question is a little too detailed for my memory.

But I think you're still a little confused about what the RAP tests. The RAP only strikes interests that logically have a chance to vest after 21 years of a measuring live's death. A future interest is valid if it never vests or if it vests 21 years before a measuring life's death. So it's not that the court determines "this will never happen," but that logically there is no uncertainty about when an interest MIGHT vest. The more uncertainty the worse it is for the future interest. Think about this metaphor:

Say you work for a dynamite company as an clean up guy. It would be smart to tell your boss that you will only go down to clean up after a dynamite accident if either 1. the dynamite blows up in the next twenty one minutes, or 2. the dynamite will never blow up. If there is a chance the dynamite will blow up in 15 minutes, or an hour or a day from now, that could really fuck with your occupational safety.

Same logic applies for the RAP. The courts don't want the uncertainty about the future interest vesting for a long time after the death of the testator, for fear of the dead hand.

[Easy-E]

No, that's very clear. Thanks man. So basically it says "yeah this is valid because it is never going to happen", for this case at least? Whats the actual ramifications of this? Sure, your interest is still valid, it just will never ever vest? Though I had this down, but I'm still getting throw for a loop.

We don't have a property test until next quarter so that future interests question is a little too detailed for my memory.

But I think you're still a little confused about what the RAP tests. The RAP only strikes interests that logically have a chance to vest after 21 years of a measuring live's death. A future interest is valid if it never vests or if it vests 21 years before a measuring life's death. So it's not that the court determines "this will never happen," but that logically there is no uncertainty about when an interest MIGHT vest. The more uncertainty the worse it is for the future interest. Think about this metaphor:

Say you work for a dynamite company as an clean up guy. It would be smart to tell your boss that you will only go down to clean up after a dynamite accident if either 1. the dynamite blows up in the next twenty one minutes, or 2. the dynamite will never blow up. If there is a chance the dynamite will blow up in 15 minutes, or an hour or a day from now, that could really fuck with your occupational safety.

Same logic applies for the RAP. The courts don't want the uncertainty about the future interest vesting for a long time after the death of the testator, for fear of the dead hand.

I was cooked yesterday, looks like I was mixing up the purpose of the RAP and the way you test it ("kill off those alive at time of conveyance"). Thanks for clearing it up, I think I get it now. Gonna try and drill it a bit more today though.

More property...


"Tacking" of owners. Let's say A owns Blackacre, and grants B a life estate. C begins adversely possessing Blackacre. Ten years go by and B dies. If the statutory period is 20 years, does C now need to adversely occupy Blackacre for only 10 more years, or a full 20 years under A? I was under the impression only 10 more years are needed, because there is privity between A and B, but one of my supplements indicates otherwise.

[2807]

Anyone care to enlighten me on title theory vs. lien theory?

This is simple. Don't over think it.


Title Theory: When the actual title of the property is transferred to the other (likely a lender) party until the loan is paid off. Then, title is transferred back. It is like collateral for the loan.

Lien Theory: (As in CA) The lender merely has a lien against the property that he can then foreclose on (or take action on) if the loan is not paid. Still is like collateral, but is not an actual title change.

The issue comes up when 1 Joint Tenant mortgages his portion of the property. If it is a Title JX then there is a break of the JT, and a TIC analysis.

With a Lein JX you do not have the that prob.

[North]

TY guys for the discussion on Assumption of Risk. Really helped today.

[sinfiery]

What happens in criminal if you touch someone on the shoulder (assault), they happen to be a hemophiliac, they bleed out and die.

There is the taking the victim as you see them doctrine but whats the mens rea here? Negligence? Recklessness? Do you assume the person had knowledge of the disease?

[Easy-E]

Anyone care to enlighten me on title theory vs. lien theory?

This is simple. Don't over think it.


Title Theory: When the actual title of the property is transferred to the other (likely a lender) party until the loan is paid off. Then, title is transferred back. It is like collateral for the loan.

Lien Theory: (As in CA) The lender merely has a lien against the property that he can then foreclose on (or take action on) if the loan is not paid. Still is like collateral, but is not an actual title change.

The issue comes up when 1 Joint Tenant mortgages his portion of the property. If it is a Title JX then there is a break of the JT, and a TIC analysis.

With a Lein JX you do not have the that prob.

Oh that's easy enough. Thanks.


I think this qualifies for this thread. My professor said to ignore real covenants for the exam, so I guess as far as servitudes go we're only responsible for easements (affirmative/negative) and equitable servitudes. I've been stressing myself out over horizontal/vertical privity, "touching the land", burden/benefit...is this stuff only important for understanding real covenants? Or am I missing something?

[tony2167]

Question for my own sanity since this came up on my torts exam today:

If a person throws a barstool at someone else and in evading the stool that person knocks over a candle and sets alight the window curtains, can the stool-thrower be held liable for trespass to chattels/conversion for the damage to the curtains by way of transferred intent? The person whom the stool was thrown at was the owner of the premises.

I answered in the affirmative, saying that because he intended a battery he is liable for any tortious act that follows.

[Br3v]

TY guys for the discussion on Assumption of Risk. Really helped today.

1 2 go bro

[MCFC]

Indulge a very dumb question please. I feel like I have a decent grasp on when the UCC default terms govern, but what exactly are the UCC default terms? Warranties are one, right?

[Swimp]

Indulge a very dumb question please. I feel like I have a decent grasp on when the UCC default terms govern, but what exactly are the UCC default terms? Warranties are one, right?

Do you have to know them? My professor just wanted us to acknowledge when default rules would be incorporated, but didn't care whether we knew specifically what they'd be.

[shifty_eyed]

Question for my own sanity since this came up on my torts exam today:

If a person throws a barstool at someone else and in evading the stool that person knocks over a candle and sets alight the window curtains, can the stool-thrower be held liable for trespass to chattels/conversion for the damage to the curtains by way of transferred intent? The person whom the stool was thrown at was the owner of the premises.

I answered in the affirmative, saying that because he intended a battery he is liable for any tortious act that follows.

I think you are right except it's because intentional tortfeasors are liable for all the harm that occurs as a direct consequence. There was not tortious act that followed, the evasion was self-defense.

[MCFC]

Indulge a very dumb question please. I feel like I have a decent grasp on when the UCC default terms govern, but what exactly are the UCC default terms? Warranties are one, right?

Do you have to know them? My professor just wanted us to acknowledge when default rules would be incorporated, but didn't care whether we knew specifically what they'd be.

I'd say the guidance in general has been fairly unclear. For now, my plan is just to do what you suggest, just wanted to be sure I wasn't missing some UCC provision that said, here are the default rules, or something.

[Br3v]

Indulge a very dumb question please. I feel like I have a decent grasp on when the UCC default terms govern, but what exactly are the UCC default terms? Warranties are one, right?

Do you have to know them? My professor just wanted us to acknowledge when default rules would be incorporated, but didn't care whether we knew specifically what they'd be.

I'd say the guidance in general has been fairly unclear. For now, my plan is just to do what you suggest, just wanted to be sure I wasn't missing some UCC provision that said, here are the default rules, or something.

Only ones I can remember are warranties. Maybe 2-305 open price term would be one too

[Jsa725]

.

[iworkforlsac]

Guys, urgent contracts question:

my prof told us that in case of a material breach, sometimes u have to wait for a reasonable period after cancelling the K to sue the breacher. What's the diff. between situations when u can cancel the K sue right away, and situations where u have to wait for a reasonable time after cancelling the K?

Also, this brings me to another confusion: does it matter that a party cancels the K before suing? Wouldn't the bringing of suit even w/o really cancelling the K imply that they are cancelling the K anyway?

[2807]

Guys, urgent contracts question:

my prof told us that in case of a material breach, sometimes u have to wait for a reasonable period after cancelling the K to sue the breacher. What's the diff. between situations when u can cancel the K sue right away, and situations where u have to wait for a reasonable time after cancelling the K?

Also, this brings me to another confusion: does it matter that a party cancels the K before suing? Wouldn't the bringing of suit even w/o really cancelling the K imply that they are cancelling the K anyway?

That is odd. It would be fact specific and you would likely know it when you see it.
The issue you are dealing with is "minor" breach v. "material" breach. That "reasonable time" issue may come into an analysis on material v minor and the non-breacher's duty.

If you argue material, then the non-breacher is released from his obligations. Period.
If you argue minor, then the non-breacher can sue for the damages caused, but must still continue with his K obligations. Likely need to address both...

No, bringing a suit on a breach issue does not necessarily mean the K is "cancelled." Also, I am not comfortable with you saying "canceling" the K. It is not a term we used. Better to say, the breach was a material breach and therefore the non-breacher is relieved of his K duties. (the K is cancelled by default because one party breached, and the other no longer has to act). There is not going to be a formal "cancel" ceremony.

There can still be suits for damages prior to the breach, and accompanying breach acts by both parties. It is not as if a breach relieves all parties retroactively too. The breacher will argue "minor" and sue the other. The non-breacher will argue "material" go for damages, and relief of duty.

HTH

[Easy-E]

Sup late night property people, adverse possession. Obviously there needs to be an actual entry, but if you are also constructively possessing an additional part of the land, can that fall under your adverse possession claim? Or is it only what you actually posses. Not talking about color of title here, I know the deal with that. Thanks bros.