First-Year Examination Writing Review- Stanislaus Pulle Ph.D., Dean of : Products Liability Theories USE ALL RELEVANT DATA IN QUESTION

Products Liability: State the basic theory and then disassemble it into its constituent parts and analyze the data (using because, since, therefore, however) on each aspect:

“When a manufacturer or retailer places a product in the stream of commerce and it causes injury to an intended or reasonable and foreseeable user of the product, he/she is held strictly liable in damages absent unforeseeable misuse of the product or an assumption of the risk or clear disclaimers. Privity of is not necessary and modernly, comparative negligence is a defense.”

PARTIES Defendant: Because…………he/she is a proper defendant Plaintiff: Since ………..he/she may sue under this theory

STREAM OF COMMERCE Since product was for general sale/use by the public it was placed in the stream of commerce.

DEFECT: Manufacturing- Design- Inadequate Warning If only one item in a whole line of products is defective then, we have a manufacturing defect. If all products are faulty, then we have a design defect AND if (a) a safer, alternative reasonable and feasible technology is available or (b) the product fails to reasonable consumer expectations.

(a) Discuss issues of product utility; consumer benefits; gravity and probability of risk of injury; comparable market products that are safer, comparable costs, expert and scientific etc. DO NOT DISCUSS KNOWLEDGE OR NEGLIGENCE UNDER DESIGN DEFECT

(b) Examine matters relating to single/multiple purpose product use, instructions on type and manner of use.

If the warning did not sufficiently inform or alert the user to types of risks and harms associated with use or failure to follow safety procedures, then there is an inadequate warning defect. Discuss the placement of the warning, how explicit and strong were they, and what do in case of an emergency.

ACTUAL CAUSATION: Focus on the injuries “But For” this defect, the injury would not have occurred. PROXIMATE CAUSATION: Inquire if injuries were the direct result of the defect. Was the product altered or improperly assembled etc. Were the nature and extent of the injuries reasonably foreseeable? Examine head and body injuries, eye damage, or product complaints.

DAMAGES: List of general damages for pain and suffering and special dollar losses.

DEFENSES: Comparative Negligence: Consider relative fault based on failure to heed instructions, warnings Assumption of Risk: Was there a knowing and intelligent assuming of the kind of the risks that led to the kind and extent of injuries while involved in the product-use activity? Unforseeable Misuse: Was the product put to use in a manner that was wholly outside the intended use by all other customers? Had there by prior accidents with this improper use? What is the probability and gravity of this injury with this unintended use? Disclaimers: These are very strictly construed when personal injuries occur and will not be a basis for a defense to bodily injuries based on proper product use.

First-Year Examination Writing Review- Stanislaus Pulle Ph.D., Dean of Law TORTS: Defamation Theories

Provide Definition & Disassemble into Constituents Parts

The Torts of Defamation consists of (a) a defamatory statement understood by the relevant community as such; (b)a statement of fact, not opinion; (c) of and concerning the plaintiff; (d) published to third parties (e) made intentionally or negligently (f) causes damages to reputation (g) and the statement was untrue or unprivileged or unprotected by the First Amendment.

Defamatory Statements In their plain and natural meaning the words in their full context tend to lower the reputation of the Plaintiff in his/her community, or tends to brings him/her into hate, ridicule or contempt where others would shun or avoid him.

Examine if the utterances/statement/writing have this effect given the “perspective” of the individual: If it’s about a scientist, pastor or rabbi, actors, authors, professionals –identify their relevant community and discuss if those within that community would think less of the plaintiff.

If only made orally- this would constitute SLANDER SLANDER PER SE: These are defamatory words relating to (a) the commission of a crime, or (b) infectious social diseases; (c) un-chastity of a woman (d) unfit in person’s profession or trade. For Slander Per Se, Special Damages are presumed.

If made in writing – this would constitute LIBEL LIBER PER SE: These are words which on the very face of the printed text are defamatory. For Libel Per Se, Special Damages are presumed.

Examine the data in the question to establish if this is an action for slander or libel or both.

FACT OR OPINION: It is for the Court, not the Jury, to determine as a matter of law whether an alleged defamatory statement is one of fact or opinion. Generally, if the statement is not susceptible to proof of truth or falsity it is an opinion, unless it is based on undisclosed defamatory facts known to the recipients of the message. How would the average person (hearer or reader or listener) in the community to which the statement was address construe it? Separate assertions must be examined individually but it is the whole context that matters.

OF & CONCERNING THE PLAINTIFF – Was this direct or by innuendo via the use of extrinsic evidence? Was the plaintiff identifiable?

PUBLICATION TO THIRD PARTIES-

DEFENSES: Truth; Qualified Privilege-Government Reports; Judicial & Legislative Proceedings-Fair and Neutral Reporting in Public Press Conferences-Journalist Shield Law- The Rule in NYT v. Sullivan. “A public (government) official cannot recover damages against a media defendant for a defamatory falsehood relating to his official conduct unless he proves by clear and convincing evidence that the statement was made with actual malice- that is with knowledge that it was false or with reckless disregard of whether it was false or not” (reasonable doubt in reporter’s mind?)

The Rule in NYT has been extended to specific types of private individuals as (a) those having general fame and notoriety such as movie stars (b) those who have voluntarily thrust themselves into the public limelight such as concert promoters and (c) those who have been involuntarily brought into the public limelight such as those arrested for a crime.

First-Year Examination Writing Review- Stanislaus Pulle Ph.D., Dean of Law : Post-Formation Issues

. BREACH OF CONTRACT: A breach of contract does not occur until performance becomes due or a party had engaged in anticipatory repudiation of the contract.

MAJOR BREACH: The non-breaching party fails to receive “substantial” obligations under the contract.

UCC §2-601: BREACH FOR NON-CONFORMING GOODS If goods or tender of delivery fail in any respect to conform to the contract, the buyer has the option to accept or reject all or part of the goods if non-conformity substantially impairs the value of the goods or violates “strict adherence” term of contract.

Non-Conformance: This could be with respect to quality (this includes color; design; and technical specifications) and quantity. Seller has right of making effective and timely cure. However, if buyer (a) knows of the defect and does not inform seller or (b) fails to make reasonable inspection of the goods that would have discovered the fault, or (c) fails to notify seller, then seller may claim he detrimentally relied on buyer’s silence of the non-conforming goods.

ANTICIPATORY REPUDIATION:

If by words or actions one party makes clear of his/her intent not to perform as promised, the aggrieved party acquires an immediate right to sue for breach of contract.

MERGER CLAUSES & PAROL EVIDENCE RULE

A merger clause means the written document is the final integration of the agreement between the parties and under the Parol Evidence Rule no prior or contemporaneous oral statements are admissible that contradict the final written contract. EXCEPTIONS: Courts have allowed oral statements to prove the existence of a CONDITON PRECEDENT; to clear up AMBIGUITIES; or to show FRAUD.

PERFORMANCE EXCUSED: CONDITION PRECEDENT; CONDITION SUBSEQUENT; FRUSTRATION OF CONTRACT: IMPOSSIBILITY; IMPRACTICABILITY

Condition Precedent: This is a contractual term where performance of the contract is not due unless or until a certain specified event occurs……..Examine contract for such conditions

Condition Subsequent: This is a contractual term where performance of the contract while due, is terminated on the occurrence or non-occurrence of a specified event.

Frustration of Contract: This is where an event occurs that at the time of the contract the essential purpose of the contract is frustrated because of an event (a) that was not reasonably foreseeable by either party; (b) both parties clearly understood the essence of the contract; (c) the non-performing party did not agree to bear the risk of such an event if this was foreseen; and (d) was not at fault in bringing about this event. Example: In a contract to provide music for an orchestral performance, the burning down of the music hall through no fault of the hall owner will his obligations.

Impossibility: This takes place because of events that occurred after formation, the contract is rendered objectively impossible (impossible by anyone) because of an (a) unforeseeable event; (b) the promisor was not at fault; and (c) did not assume the risk of guarantee.

Impracticability: Non-performance is excused because of an (a) unforeseeable event (b) not due to any actions by the promisor and (c) did not assume the risk of such an occurrence and (d) materially and substantially burdened the costs to the promisor.

MITIGATING LOSSES: The non-breaching party is required to reasonable and affirmative steps to mitigate his/her losses: [Within the context of the facts discuss what various actions the non-breaching could have reasonably taken to reduce losses]

DAMAGES:

1. Benefit of the Bargain or Expectation Damages: The non-breaching party is entitled to the market price (or in a building contract, the cost of completion or installation or replacement) - contract price plus reasonable incidental expenses (this could costs of brokerage fees, advertising etc)

2. Reliance Damages: This is to place the non-breaching party in the same position he was before the breach. This is the dollar value of whatever out-of-pocket costs (including labor fees) that were incurred up-to the time of the breach of contract by the non- breaching party on reliance on the promise of performance.

3. Liquidated Damages- At the time of the contract the parties stipulated to a “reasonable” forecast of the loss in the event of a breach. If unreasonable, this operates as a penalty and is unenforceable as against good public policy. [NOTE: Always examine a contract to identify if such a clause appears}

4. Special Damages-(The Rule in Hadley v. Baxendale): At the time of the contract, the breaching party was made aware or should have known of certain special losses that would flow in the event of a breach.

5. Decree of Specific Performance- (A) The breach must be of a definite and certain contract (B) The loss is unique (such as a contract for a piece of art, sculpture, land) and dollar damages at law are inadequate (C)This is not a contract for personal services (D) Feasibility and Mutuality of Enforcement: [Examine jurisdictional issues; transfer of possession to a bona fide purchaser for consideration; supervision problems] (E) No unreasonable Delay

6. Quantum Meruit- Equitable remedy for services rendered.

7. Restitution Damages- Where the breaching party must pay damages in an amount equal to the benefit which he/she has received from the performance of the non-breaching party=s.

8. Damages for Anticipatory Repudiation- Damages are measured from the time the non- breaching party learns of the breach and may sue immediately.

ASSIGNMENT OF RIGHTS:

Obligee is the person to whom performance is due under a contract by the Obligor. Assignment is Transfer of Rights by Obligee (Assignor)

Valid Assignment: The Assignor (a) is not contractually prohibited form transferring this right [NOTE: Anti-Assignment Clauses are narrowly construed] (b) manifests an intent to assign the right fully and completely (b) the right must be in existence at the time of the assignment (not some un- matured future right); (c) the transfer must take place immediately, and (d) there must be vesting such as notice to the Obligor

Effect of a Valid Assignment: The Assignee steps into the shoes of the Assignor. Performance from the Obligor is now due directly to the Assignee and any defenses Obligor had against Assignor he may have against Assignee.

------(Promise To Pay) Borrower ---------Lender (Obligor) Loan Contract < (Obligee) > < (Assignor) (Upon Notice to Borrower > (Right to Receive Payment) Borrower’s performance runs > < directly to Assignee) Finance (Collection) Company (Assignee) DELEGATION OF DUTIES

Delegation is Transfer of Duties by Obligor (Delegator)

Valid Delegation: The Obligor (a) is not contractually prohibited from transferring his obligations (b) the nature of the duties involved does not involve any special skills or attributes of the Obligor (c) the Delegatee assumes these duties. [Discuss what actions or conducts were involved to make this a valid delegation]

Effect of a Valid Delegation: The Delegatee must now render performance directly to the Obligee. In the event of non-performance or defective performance by the Delegatee, this is a breach for which the Obligee can sue the Delegator (Obligor)

NOTE: The Obligee can also sue the Delegatee if the Delegatee promised Obligee of his performance.

Draw diagrams to visually identify the parties involved, and the nature of the transactions at issue and most of all “who owes what performance to whom.”

------(Promise To Paint Home) Painter-------Home Owner (Obligor) Painting Contract (Obligee) (Delegator) > (Duty To Paint) > > > > Painter’s Friend > (Delegatee)

NOTE: If Friend fails to paint or does a poor job, Home-Owner may sue Painter for damages. If Friend had also specifically promised Home-Owner that he would paint, then Home Owner may sue both: Painter and his Friend. He may not sue for specific performance because this is a contract for personal services. ASSIGNMENT First-Year Examination Writing Review- Stanislaus Pulle Ph.D., Dean of Law : [ & Self Defense]

ENTRAPMENT

Federal California

PURPOSE: To Show Def Would Not Have To Punish An Errant Officer: Would Not Have Committed The Predisposition of Def the Crime If The Intent Had Not is Unimportant Been Implanted In His Mind

THEORY: Def Is Not Guilty Def Is Guilty

FACT-FINDER: JURY JUDGE

EVIDENTIARY TEST:

[Subjective Test]-Focus on Def. [Objective Test]-Focus on the Officer

Was the Def Predisposed toward Committing the Crime Prior To Being Approached By Government Agents? Was Conduct Of Officer Likely To Induce A Normally Law-Abiding Person To Commit The Crime Charged? United States v. Russell Jacobsen v. United States A Suspect May Be Provided Opportunities To Commit A Crime- [Like A Decoy Program] But Overbearing Conduct By Badgering Or Pressuring The Suspect Would Constitute Entrapment.

People v. Barraza

SELF DEFENSE

RULE OF FORCE

One may use deadly force to repel a lethal attack but may never use deadly force to repel a non- deadly attack One Is Allowed To Use Reasonable Non-Deadly Force to Counter A Non-Deadly Attack.

[Except under applicable State Law in Defense of Habitation where a homeowner seeks to prevent the imminent commission of a violent crime in his presence, on his property and against his person or family such as murder, rape, arson, robbery, burglary, kidnapping]

RULE OF BELIEF

At the time of use of deadly force, Def must have an honest (subjective) and reasonable (objective) belief that he/she is in imminent danger of death or serious bodily injury. The reasonable belief is one that a reasonable person in defendant’s circumstances would believe that he/she is about to be killed or suffer serious bodily injury RULE OF RETREAT [In Retreat Rule Jurisdictions]

Even if Defendant uses deadly force to repel a deadly attack and believes he/she is in imminent danger of death or serious bodily injury, that Defendant has a duty to retreat if this could be completely and safely done without Defendant suffering any harm. EXCEPTIONS TO THE RETREAT RULE

Even if retreat is required, the Defendant has no duty to retreat in his own home (castle doctrine) or at his office (extended castle doctrine) LOSS OF RIGHT OF SELF DEFENSE

If the Defendant is the initial (deadly) aggressor, he/she loses the right of self defense unless Defendant withdraws from the conflict and effectively communicates his/her withdrawal to the Victim.

Example: If D & X are engaged in an ordinary fistfight begun by X but thereafter D pulls a knife. D is the initial deadly aggressor. So if X were to wrestle the knife away from D and tries to kill D but the knife then slips and drops to the ground and D picks it up and stabs X to death. D has no right of self defense DEFENSE OF OTHERS

Common Law: The Third Person asserting self-defense “steps into the shoes” of the person on whose behalf he/she came. Thus in the above example if T shot and killed X when X had the knife and was about to kill D, T has no right of defense of others

Modern Law: The Third Person has a right of defense of others if he/she honestly but reasonably believes that the person to whose aid he/she came was the innocent victim of a deadly attack even if this was a mistaken belief.