Sample Reduction Outlines/Charts/Check Lists

Excerpts are attached from BarEssays.com, Lean Sheets, MakeThisYourLastTime.com (Appro Sheets and
Magic Sheets), and Stanford Law School. Find something that works for you .

RIGHT WAY

There is no right way to create a short outline or checklist for each subject. Try charts, flashcards,
outlines, checklists, or flowcharts . Make your own, modify a commercial product, or both. All of these
types and methods are successful. What works for you might vary by subject. Larger or tough subjects
might need more than subjects you are comfortable with .

All that matters is that you create a short document you can memorize. The process of creating it helps
you memorize so whatever process you like or type of document you prefer- the key is that you are
actively engaged in process of creating some kind of reduction that will work for you.

WRONG WAY

Don't try to synthesize all of your bar review course materials into anything. This will take too long and
produce an end product that isn't useful and is far too long to be memorized.

Don't try to create or modify a law school outline. They are overly comprehensive.

Don't buy everything you see. Use the examples in the Guide to the Bar Exam (available in the Graphics
Dept. and on the Bar Exam Resources TWEN page). Look at some samples and then decide what to use .

Don't use everything you find. Friends may have their outlines to share. Stanford has a nice on line bank
of short outlines as well. Within a few minutes, you could easily compile dozens of things on each
subject. You don't need to and you will waste valuable time with all this duplication.

Don't worry that you will miss something . This is a reduction. By definition, it is not comprehensive. It is
better to have a workable short outline or chart and actually memorize all it, than it is to create a more
comprehensive document you cannot memorize.
APPROSHEETS I CONTRACTS
First things to check!
• Applicable governing law? Uniform Commercial Code (UCO applies if sale ofgoods is involved Otherwise,
common law (CL) applies. For hybrid cases, determine predominant purpose of transaction.
r [UCC] Is each party a merchant or non-merchant? Check for the following if there is at least one merchant:
- [UCC offer] Firm offer (2-205)
- [UCC acceptance] Battle of the forms (2-207)- different rules if one party is non-merchant
- [UCC statute of frauds] Merchant's confirmation
- [UCC parol evidence rule] (1) Implied warranty of merchantability. (2) If seller is merchant: Risk of loss in
non-carrier shipment passes to buyer only upon buyer's possession
- [UCC remedies] If buyer is merchant: Merchant buyer's duty as to rightfully rejected goods

Does the call require you to determine whether there is a valid contract?
• Mutual assent (bargained-for exchange)? Parse individual communications, and check each for OTAC:
- Offer or counteroffer?
- Terminatiori? There can't be termination until there is an offer. If terminated, check for new offers
- Acceptance? There can't be acceptance until there is an offer.
- Consideration? If there is, keep it short and sweet:
Promises must be supported by consideration to be enforceable. There must be a bargained-for exchange
between the parties. Each side must give up something they wouldn't have but for the promise . That which
is bargained for must be of legal value. There is consideration because A agreed to X, and B agreed to Y.
If no consideration, any alternatives? Promissory estoP-Qel? Ouasi -K?
r If valid K:
DEFENSE to enforcement? Statute of frauds? See below
DEFENSES to formation? Incapacity, misrepresentation, nondisclosure, duress, ill, unconscionability

Oral agreement (no writing)? Incomplete performance of K? Check for statute of frauds (defense to enforcement)!
• K within statute of frauds categories (MY LEGS)+ no applicable exceptions+ satisfactory writing?
Under the statute of frauds, for certain categories of contracts to be enforceable, it must be evidenced by a
signed writing reflecting that contract. As a defense to enforcement, it voids a contract in violation of the
statute of frauds for not being sufficiently committed to writing. One type of contracts that requires writing
is [MY LEGS].
• Any alternative ways to enforce? Promissory estoppel? Ouasi-K?

Does the call require you to determine whether a party performed under a valid K?
• If clearly valid K, dispose by mentioning OTAC in one paragraph or quoting "valid contract" from facts
• What are the conditions (by non-performer) vs. promises (by performer)? List any express conditions
o Party seeking to vary terms of a final writing? Apply parol evidence rule (and exceptions if applicable)
o Party seeking to modify terms? CL (preexisting duty rule) vs. UCC (good faith)
• Anticipatory repudiation (intent to breach)? Actual/present breach (material/minor)? Conditions are legally
excused upon anticipatory repudiation or material breach by promisor, creates absolute duty to perform
• DEFENSES? Duty discharged by impossibility, impracticability or frustration of purpose? Mistake?

Does the fact pattern involve a third party?

• Intended beneficiary? Has the beneficiary's right to sue vested? (Incidental beneficiaries can't sue)
• Assignments? Delegations?

Does the call require you to discuss remedies?

• Establish the liability theory first. Refer to Remedies Approsheet if the call requires in-depth discussion
• Damages($)? Expectation/Actual? Consequential? Incidental? Liquidated damages clause?
o UCC seller/buyer damages
• Restitutionary remedies?
• Equitable remedies? Specific performance? Rescission? Reformation?

Rev. 201 7 0506 © 2014-17 .\"JWW.M akeThi sYo urla stTi rri_e:..co rn
APPROSHEETS I CONTRACTS

- [Offer] Firm offer (2-205)

WHETHER THERE IS A VALID K
For each chronological "communication" ...
- [Acceptance] Battle of the forms (2-207) - different
rules if one party is non-merchant
- [UCC statute of frauds] Merchant's confirmation
- [UCC parol evidence rule] (1) Implied warranty of
merchantability. (2) If seller is merchant: Risk of loss in
non-carrier shipment passes to buyer only upon
buyer's possession
- [UCC remedies] If buyer is merchant: Merchant
buyer's duty as to rightfu lly rej ected goods

Alternative to Alternative to
consideration? enforcement?
- Promissory K? - Promissory K?
Yes
- Ouasi-K? - Ouasi-K?

Valid Kl Enforceable Kl
DEFENSES to formation/enforcement?

WHETHER A PARTY PERFORMED

Establish valid K

Establish terms of condition/promise

- Paro! evidence rule?
Assignment Can
sue/enforce K
Conditions excused? Ant. rep.? Breach? when right to
DEFENSES? Delegation sue vests

Rev. 20170506 © 2014-17 www.MakeThi sYour LastTime .com

APPROSHEETS I EVIDENCE
If California criminal case: Set up Proposition 8 preamble before anything else
Proposition 8 is part of the CA Constitution . Prop 8 makes all relevant evidence in a criminal case admissible,
even though objectionable under the California Evidence Code, unless it falls under ce rtain exceptions .
• Doe s an EXCEPTION (CHOP SUR) apply? If yes (l ikely), analyze admissibility per ordinary CA rules

First things to check for each item of evidence

• Descnbe logical relevance for adm1ss1bi!ity (not judicial notice orj ury instructions) of each item:
- - - - - -- - -~
Evid ence must be relevant for it to be admi ssible. It is rele vant if it tend s to prove or di sprove a material fa ct
([CA]: "a material fact in dispute').
• Describe legal relevance (FRE 403 1 CEC 352): Probative value vs. unfair prejudice
o Exclusions based on public policy: subsequent remedial measure. offers to settle/pay meds. etc.
• Documenta ry evidence? Must meet authentication and best evidence rule ([CA] se~ondary evidence rule)

Did someone testify?

• Who spoke? Judge & jurors are not competent to testify. Judge may provide proper judicial notice
• Did the witness have personal knowledge?
• Did the witness have an opinion? Lay witness vs . expert witness
• Was the re an examination of a witness (transcript. question & answer)? [See 2009 FEB 3]
o If so. analyze both the question and the statement as one item of evidence
• Discuss any objections to form of question/ answer: leading, non responsive. speculative ...
• If a part of an an swer is improper. note that counsel should assert mot.ion to strike

Is the evidence a statement {he said ... she said ... out of court)?
Hearsay is an out-of-court statement made by the declarant offered to prove the t ruth of the matter ass erted . It
is inadmissible upon proper objection unless an exemption or exception applies .
o Other purpose : Admissible if offered to show (instead of truth of the matter asserted):~
operative facts. effect of statement or state of mind, nonhuman source (e.g., animal, machine)
o Non-hearsay exemptions (party admission, prior inconsistent statement. prior consistent statement.
prior ID) ([CA] These are still called "exceptions")
o Exceptions. applicable where declarant is unavailable (via PRISM: privilege, refusal, incapacity,
someplace else, memory lacking)
o Exceptions, applicable where declarant is available or unavailable
o Multiple hearsay (X sa id Y said Z)? Check admissibility for each level of hearsay
• See if declarant can be impeached (discredited) based on: bias, motive to lie. defective memory or senses, prior
inconsistent statement. prior bad act (dishonesty), poor reputation / opin ion for truthfulness, convictions
• May also be character evidence, see below

Character evidence: Character describes disposition with respect to general traits (good driver, trustworthy.
etc.). Character evidence is inadmissible to prove conduct in conformity therewith . Just becau se [ll] did [specific
bad things showing similar character] before does not mean he did [charged act] in this case.
• Are there exceptions to introduce character evidence anyway (w/ reputation, opinion and/ or specific acts)?
o In a criminal case only:
• After ll opens the door (offers character evidence first)
MIMIC: to show other purpose (instead ofto prove conduct in conformity)
o Character is an element at issue (e.g., defamation. self-defense, child custody)
• Habit evidence? Look for words like "always," "every day" or "frequently"

Js there a special relationship between a declarant and another person?

• Check your privilege: attorney-client. spousal testimonial vs. marital communications, therapist-patient
• Co-defendant: Any coconspi rator admi ssion s? A6 confrontation clause (overrides hearsay exceptions)?

Rev. 201 70730 © 2015- 17 www.M akeTh isYour La stTi me.co m

APPROSHEETS I EVIDENCE

WHETHER A PIECE OF EVIDENCE IS ADMISSIBLE

No Documentary Evidence
- Logical relevance
- Authenticated?
- Legal relevance
- Best evidence rule?

Competence? CHARACTER EVIDENCE

Personal knowledge? EXCEPTIONS:
Lay vs. expert opinion? - Crim: /:i opens door? It is CE
- Crim: MIMIC?
- Element at issue?
- Habit evidence?
Exception
applies
l+------_,J

- Out of court?
- Offered for truth? No
ADMISSIBLE!
Yes - Exemptions?
- Exceptions?
Motion to strike - Multiple hearsay?
parts objected to
Hearsay

INADMISSIBLE!

Yes Yes No exception

Privilege applies? Co-conspirator? CA criminal case?

- Spousal immunity - 6th Amendment Proposition 8 is in play
- Marital comm'n confrontation clause - EXCEPTION appl ies?
- Attorney-client applies? (overrides any If yes (likely), analyze
- Therapist-patient hearsay exceptions) admissibility per CEC

Rev. 20170730 © 2015-17 ~ww .ryl akeTh isYourLastTime.corn

12/30/2015 California Bar Exam Outlines - Ba- Exam Outlines - Leansheets.com

1..EAN/pSHEETS
Evidence Charts

.l1rntgligeria cu-c. \Vo tMI: s~.ow know ·dge. .o r H'odiiitwti6n.

IIOlit!Pl\1~ pan or IN lbttz1Uorit1tlevarJ to
lhtissueormotM.

Stat,:aeru prtM1 fh• wrilu had knowladge ofU11 Nodistwtion.

t«etc &l!.d sho1.tt coMecUon. lo the cl&tm a.t bS'lle

Sh,ttr.tnls UHd to d$1n0J1Jmlt l~I \he declll'\nl odi,linttiOll..

bclitved thttl\ b be tn1e, to dlJMOnstn.le U\Su,lty
orluiow1-dg,.

St•lera,nu or a.drnisi,ion made by" pa.rt~ or Col\$iduedhear"y,blll o. u r

,omc:oric altnb.teble lo • parly.. offeJOd bya party nee.pl.ions .
oppotie;nt.
• PU$0MI knowledp IIDt reqqi~
• OpWoa rUZ barriag •td.uri,als ofl epl
tOt-&luio~bwbninible
• B.tup1oyett Cor.-s,ld,red ll.nrny, but fe.. und&r
• Aa nt>.on7i~ spa}Wperson uceplioM.
• E>rfloytc ofa pt11y·ccncerlllllg • ~Un
withil\tl!Ucq>tolllil&npl?)'l'Ml'll.1ll4 t:1..tn2m~1dt ell'l'kiJ"• ' sl&.\l!l.ltll!lnl11
m6dt d.uruig tM •~pb~ri nh.liaNhip - oNy 6.'l edni.iiisi»\ wt.re nei::lii.o'Jt
• Co-cotupil'lior, in i\uthannCo ora coNpirldy CoNIU11loft).1,apcW1il'Ui, bui, for
loco1r;)a)(•ul.'1uorcivilW101~. · a.'ll e.mpk>y,r 11 liAbllily lll t'ha c~&
• Parlntrstr1adi -..-•hlalha ,oo { ur,hi 11~r:r91pordee.t-suptii1I..
Siln1.A nu,ybe a.n.,;tlmisPln.~: Couidt1tdll.eun.y. but falls under
• Pertyhunl ~ W\derolood n 'ceptions.
• Party was p_hys!cally al'd meittialJ;o eapablo r;f
denyi:lc
• Re.uotele penon wowd MYe denied ti,,,
tCC\IH,liofl.
lnicoMisteh1 ctfd,m,nt lll\dl·be !Mdo Utldtro!ilh .i. CoN14ined he;or,e.y, .bul falb urdcr
a prior })rocoading or d,pod:io11 Wis ad.mis1,i)l1 1xc.ptioJ111.
lbrl;t\pttchJraeJ\I &lldu tllbslWM pooC.
(d,iilingu.il;ltbd.wu• pr:ior leslimony nquiril:lg A.U prior iaCOMis:te,ntsllicme.nlo art
UJ\.IVlihbill adrn:isJibl&,
Acoftiirtcnt $(etcwnl i• adl'Qis•~l, ifmede Caasidcreci hcar,a.y, bul (alb urdcr
bef<i1• 61\ llkgtd bmc 01 ll!..coMidC.tllstateftAI 4XCtptioM.
ndcu be ~•das ,ubs111?1tivcpi00(ortobol1111
credibility.
Slelem1ntsofide::liiftce\ior,.madti .nu ptir,.eiving Co~ond. hea:m.y, bul. a.U. ulW1
h.i.rir (does'll)I nquite oath or folllW po cu cling). cxccJIUOn,,

...i
TWP.Al

http://www .leansheets.com/california-bar-exam-outli nes-leansheets-com/

MAGICSHEETS TORTS 1/4 I
I. INTENTION!\L TORTS
a. General elements: voluntary act (affirmative, not reflexive or unconscious), intent (not moti ve, "vo lition" sho wn by
desiring consequences or hav ing purpose to bring consequences or knowing such consequences were substantiallv
certain to occur, children can form intent), act ual causation (but for / substantial factor, liable for all consequenc~s)
b. Transferred intent: D. intends to commit a tort but instead commits a different tort, commits the same tort agai nst a
different person, or both. In those cases, the intent is transferred to the actual tort or person. Applies to battery
(during apprehension), assault (during actual contact), fa lse imprisonment, trespass to land , trespass to chattels
c. Battery: Harmful or offensive contact with fl ' s person-i. e., A voluntarily acted to bring about harmful or
offensive contact with fl's person; A intended such contact with fl's person; A caused such contact
i. fl's person: fl or so mething closely connected to fl. TT need not be aware of conduct. Delayed contact OK
ii. Direct/ indirect physical contact offensive to a reasonable person ( unless D. knew 11 particularly suscep tible)
d. Assault: Il 's reasonable apprehension of imminent batterv
i. n must actually suffer apprehension by apparent ab ility. Words alone rarely create assault (no immin ence)
e. False imprisonment: Intentional confinement of I1 to a bounded area against H's will that n knows of or is
harmed by
1. No reasonable means of escape known to fl . Embarrass ment OK. Not by rep utational harm or future threats
11. Shopkeeper's privilege: A shopkeeper (one tasked with safeguarding) may detain a s hoplifter for a
reasonable period of time, in a reasonable manner (can also be defense to battery) if the shopkeeper has
reasonable suspicion to believe that the detained person committed or attempted to stea l store property
f IIED: Extreme and outrageous conduct causing severe emotional distress (requires damages)
1. Intent: Intention al or reckless
11. Conduct exceeds al I bounds of decency. Lesser showing enough for certain D. ("gross insults" by innkeeper,
common carrier) or certain n (children, particularly sensitive, elderly, pregnant)
111. 3P recovery : 6. intentionally/recklessly causes severe emotional distress and ...
l. 6. knows 3P is present + direct v ictim is a close family relative of3P (bodil y harm not required)
2. 3P's emotional distress is so bad that it results in bodily harm to 3P (heart attack, stroke, etc.)
g. Trespass to land: D.'s intentional act (not necessari ly to trespass) causes physical invasion of Tl's real propertv
1. Physical invasion: Entry by anything tangible (e.g. , bullet, pesticid e, person), no t li g ht, noise or vibrat ions
11. ffs land: Anyone in possession of land (LL, T, APer) , which in c ludes surface, airspace, subterranean space
111. Mistake is not a defense: 6. need s intent to enter land , not intent to trespass
iv. Damages: Not required for intentional entry. Required for negligent, reckless, strict li ab ilit y trespasses
h. Trespass to chattel: Intentional interference with Il's possessory right to personal property
1. Interference : Dispossessio n (direct interference w/ possession - taking) or interm eddl ing (damaging)
11. Conversion: Substantial interference with Il's possessory right to personal property
I. Substantial interference: Longer deprivation of possessory right, larger damages, destruction
111. n may reco ver rental value or ti.Ill rMV at time of trespass/co nvers ion (damages) or possession (replev in)
1. DErENSES
1. Co nse nt to 6.'s conduct, not to its co nseq uences: 11 had capacity + express/im pli ed consent + w/in sco pe
I. Implied consent to reasonab le tortious acts (sports) . Presume consent to ordinary societal contacts
11. Defense of self: 6. may use force reasonabZv believed to be necessary to avoid imminent harm by n
I. Reasonabl e and proportionate to rI's force if reasonable person would have believed under attack
2. Where th ere is a duty to retreat (e.g., statute), it only applies when deadly force is being
threate ned , and there is a safe way of escape. No duty to retreat from home
111. Defense of property: 6. must first demand that TT stop the conduct before using reasonable force in defense
1v. Defense of others: 6.. can defend a 3P from D's attack if 6.. reasonably believed that the force used is
necessary to avoid imminent harm (to the same extent that 3P would be entitled to defend himself from rt)
v. Necess ity (property torts): Public necess ity-6.. may act to protect the public from severe harm (absolute
defense). Pri vate necessity-!:-. may act to protect individual interests if the threatened harm is substantiall y
greater than ff s harm. D. and Il li able for any harm caused by exercising pri v ilege or preventing 6.'s act
II. NEG LIG ENCE
a. To be liable for negligence, A must fail to exercise such care as a reasonable person in his position would have
exercised, his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in II 's
position, and this breach must cause ll 's damages
b. Duty of care not to subject others to unreaso nable risk of harm owed to all foreseeable n s (cf. Andrews: everyo ne)
1. Nonfeasance: No duty owed to take steps to rescue/aid, except where affirmative duty is created by I)
special relationship (parent-child, common carriers, innkeepers, shopkeepers), 2) L'.'s conduct creating the
peril , 3) 6..'s undertaking the action for 11's benefit (attempt to assist), 4) L'.'s creating reliance, 5) contract
11. Rescuers are per se foreseeable TT: As long as rescuer's behavior was not wanton, rescued party (6.) is
liab le for rescuer 's (f!'s) injuri es caused by the rescue
111. Duty to control 3P: Onl y where I) dram shop act (liable if 3P injures b/c of intox), 2) special relationship
1v. Negligent infliction of emotional distress (NIED): Pain and suffering is reco verable under bystander action
(rI is owed a duty if fl was presen t at scene (not in ZOD) + suffered severe emotional distress + had close

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MAGICSHEETS I TORTS 2/4
relationship with V) or direct action (IT is owed a duty if 11 was in zo ne of danger+ suffered bodilv harm
from threat of physical impact o r emotional distress as result of neg ligence) ·
c. Standard of care: /'!,. owes a duty to act as a reasonabl y prudent perso n in sa me or sim il ar s ituation (with a ny
relevant physical characteristics). Absent a special relationship,~ must use "reasonable care"
1. Neg li 2.ence per se. (statutory): A statute (including one that provides for crimin a l penalty) defin es the
standard iffl is in the class the statute was designed to protect + ffs injury is the type the statute was
designed to protect. An unexcused v io lat ion of statute co nstitutes negligence per se---a breach of duty.
I. Statute may be excused ifit wou ld be more dangerous to fol low it or com pliance is beyond L\'s
co ntrol (un foreseeab le, incapable)
11. Chi ldren: He ld to standard of reaso nable child of same age, experience, in tel ligence, unless ad ult activ ity
111. Landowners:/'!,. owes a different non-delegable duty to different types of entrants
I. In v itee: Someone who enters land open to public with potential to confer econo mic benefit
a. Exercise reasonable care to prevent injuries: Inspect+ make safe dangerous cond itio ns
2. Licensee: Someone who enters land not open to public not to confer economic benefit (g uest)
a. Duty to warn of or make safe known dangers
3. Tresp asser: Someone who enters land without exp ress/implied consent
a. Anticipated/known trespasser: Duty to warn of or make safe known , artificial, highly
dangerous conditions. Cannot use deadly force to defend property
b. Otherwise no duty to undiscovered trespassers
4. Artificial cond ition: Duty of reasonable care to entrants and known trespassers
a. lfse ll e r sold and vacated th e property, his liab ility continu es on ly until the buyer has had
reasonable opportun ity to discover the cond ition and take precautions
5. Attractive nui sance doctrine: /'!,. has duty to exercise ordinary care and avo id foreseeable ri sk of
harm (warn and make safe) to children caused by artificial cond iti ons on pro perty if: I ) dangero us
condition owner is/shou ld be aware o( 2) owner knows/s hould know children freq uent the
vic ini ty , 3) co ndi tio n likely to cause injury (b/c 11 child 's inability to appreciate the ri sk- doct rine
does not app ly to a " bright" child), 4) expense of remedying danger is outweighed by risk
6. LL-T: LL li able for : common areas (lobby), negligent repairs, known hidden defects, reasonable
care to discover and rep air defects if LL knows Tis going to hold property open to general public
1v. Professionals: Required to possess and exercise th e knowledge and sk ill of a member of the professio n in
good standing. Medical specialists held to national standard . General practitioners held to local standard
v. Custo m or usage may establi sh standard of care, but a co urt may find that entire indust ry is negligent
d. Breach : Duty is breached where /'!,.'s co nduct falls below level requi red by the applicable standard of care owed to IT
1. Hand formula: Balance the burden of avo idin g harm < (probability of harm)(magnitude of potential loss)
11. Neg ligence per se: Violation of app licable statute (see abov e). 11 must still establish causation and damage.
111. Res ipsa loquitur creates an inference of negligence (p/f case for jury , deny directed verdict for L'-.) where I)
type of acc id ent is typ icall y the result of negligence, 2) acc ident is attr ib utab le to/'!,.(/'!,. had sole control of
the instrum entality causing injury), and 3) I1 did not contribute to the injury./'!,. may rebut wi th evidence
e. Causation= cause in fact (bu t- for cause, substantial factor, or a lternative causes) + proximate cause
1. _But for: 11 must show more like(v than not, but for /'!,.·s negligence, rJ wo uld not have been injured
11. Substantial factor (mu ltiple ca uses) : Eac h /'!,.·s conduct alone wou ld have been suffic ie nt to bring abo ut [l's
indiv isible injury. Assum e joint and several li ability (each L'-. liab le for full damages)
111. A lternative causes (mu ltip le acts): Where there are multiple acts, onlv one of w hich causes inju ry but is
unknown, each /'!,. must show that hi s neg ligence is not the actual cause
iv. Proximate cause: /'!,. is liable for harmful res ults caused by his acts if they were foreseeable (in any manner
for any harm-see eggshell skull rule)
1. A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation and
becomes the proximate cause. The more intenti onal th e inte rvening cause, the more likel y it is
superseding. BUT if!'.'-. should have realized the risk, he may stil l be li ab le fo r inten tional 3P acts
2 . Foreseeab le intervening causes : subsequent medical malpractice, negligent rescuer, subsequent
diseases caused by weake ned condition , subseque nt accident substantiall y caused by injury
3. Eg2.shell skull rule: /'!,. takes fl as he finds him ;/'!,. is liab le even if exte nt of damages unforeseeable
v. Use jo int and several liability where multiple ac tors are proximate causes for an indivisible injury
f n
Damages : is entitled to economic damages ( med ical expenses), noneconomic damages (pain, emotio nal di stress),
punitive damages (if /'!,. conduc t is reckless or malicious)
1. No recovery for pure economic harm (loss of income), except in N IED; interest in personal injury action;
atto rney fees
11. Co ll ateral source: Total damages are not reduced by benefits fr om other so urces, but ot her 1'1s can red uce
111. Duty to mitigate: I1 has a duty to take reasonable steps to mitigate damages (seek treatment)
g. Pure comparative ne2.ligence (MBE) : I1 recovery is reduced by his fault. Mod ifi ed: 0 recove ry ifl1 >~/'!,. negl igence
h. Contributory negligence: Any fault by 11 bars recovery. If/'!,. had last clear chance to avo id harm , 11 recovers fu lly
1. Assumption of risk: Recovery may be reduced or barred ifI1 knew the ri sk specific to /1. + vol un tar il v assumed ri sk

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MAGICSHEETS I TORTS 3/4
i. Express assumption of ri sk (c lear writte n/oral release from negli gence) is a co mpl ete bar to recovery
11. Professional rescuer/firefighter's rule: If professional (including vo lun teer ) resc uer f1 is injured by ri sks
inhere nt in occupation from L'i.'s negli ge nce, reco very fo r negligence is barred (assu med ri sk as part ofjob)
111. Avoidab le consequences : f1 fails take reasonable steps to miti gate damages
Ill. STRICT LIABILITY (w itho ut fault)
a. Wild animals: l fl1 is injured by animal's character istic propensity, L',. is strictly liab le to in v itees and licen sees
b. Domestic a nim als: Keeper is not liable unl ess he knew or had reason to know of its dangerous propensity
c. Abnormally dangerous act ivities create a foreseeable risk of seriou s harm even wh e n reaso nable care is exercised b y
all actors that is not a common activity in th e a rea
i. f1 can reco ver if L'i. engaged in ADA + f1 was injured by the type of danger characteristic of the acti v ity
d . DEFENSES (see I1-h) : contributo ry neg li gence if f1 knew of the danger, comparat ive negli gence, ass umpti on of risk
IV. PROD UCTS LI A BILITY (no t for se rv ices, e.g., repair, malpractice)
a. Strict liabi lity theory by any fo reseeab le f1
1. Commercia l se ller: Anyone engaged in the bus iness of marketing and distr ibu ti on chain of the product has
an absolute duty to supply safe products to any foreseeab le TT (no pri v ity required)
11. Product was defective when it le ft A' s contro l (b reac h of absolute duty)
1. Manufacturing defect : Product cam e out more dangerous than in te nd ed
a. Ordinary consumer expectationJest: Product fai led to perform as safe ly as an ordinary
co nsumer would expect. L',. mu st anticipate reasonable mi suse
2. Des ign defect: Ve ry design res ul ted in product not safe for its inte nd ed use
a. Inadeq uat e warning or absence of warning: A produ ct must have c lear and comp lete
warnings of dangers that may not be apparent to users. One lan g uage OK. Unneeded if
obviously dan gero us (kn ife)
b. Feasible alt test: Product co ul d have been made safe w/o ser iou s impact o n price or utility
c. Risk-utility test: Danger of desig n > utility to society, feasibil ity of alt des ign s
111. Product must not be expected to or ac tua lly undergo signific ant changes before it reaches the user
1v. Causation: Actual-defect existed whe n product left L'i.'s control (TT need not prove fault). Pro ximate- type
of inj ury was foreseea ble at the time product was placed in the stream of co mm erce
I. Learned intermediary rule: Manufacturer is re li eved of liability if an inter mediate handler
di scovers th e defect and knowingly passes it to TT or failed to convey manufacturer warning to f1
v. Damages: Generally, personal injury is recoverable. Purely economic loss NOT recoverable
I . Duty to mitigate : f1 has a duty to take reasonable steps to miti gate dam ages
v1. DEF ENSES: misuse (i n an unintended & unfo reseeable way ), assumpti on of ri sk, com parative neg li gence ,
co ntr ibutory negligence if TT di scovered defect, alteration (3 P un foreseeably c hanges th e product)
b. Neglige nce : Ana lys is is similar to ordinary neg ligence (d uty, breach, causation, da mages)
1. Dut y: A ll foreseeab le f1 s. Standard of care of reasonably prudent com mercial se ller who would ...
11. ~reac h: Reaso nab leness of L',. ' s conduct who se fa ilure res ult ed in supplying a defecti ve product. Re s ip sa·>
111. Actual c ause. Pro ximate cause: Learn ed interm ediary rul e also applies
1. A lso: Neg ligently failing to in spect with ev idenc e th at would lead a reaso nable person to do so
iv. J)amages: Physical or property dam ages. Purely economic loss NOT recoverable
c. Implied warran ty theory by purchaser, family , hou se ho ld , and g uests
1. Merchantability (b reached by merch ant dealing in kind of goo ds sold) refers to whet her the goods arc of
average acceptable quality and fit fo r the ordinary pu rpose th e goods are used
11. Fitness fo r a particular purpose (breached by any seller of th e goods) refers to w hether th e se ller kn ows/has
reaso n to kno w the particular purpose the goods are required fo r and the buyer is rely ing on the sell er·s sk ill
and ju dgme nt in selecting the goods
111. No need to show fault, just breach. Actual + proximate cause. Purely economic loss is recoverable
1v. DEFENSES : ass umption of risk (using while kno w ing breach), contributory negligence if disco veredn
defect, fa ilure to give no tice of breach (under UCC )
d. Express warranty (foreseeab le f1s): L',. makes representation affirming a fact o r promi s ing to the buyer as to the
product th at beco mes th e basis of the barga in
V. DEFAMATION
a. To establish a primafacie case for defamation, the following 4 or 6 elements mu st be proved:
b. (I) Defam atorv language te nd ing to adversely affect one ' s reputation. Opini ons mu st be based o n specific facts
c. (2) Of or concerning 11: Reas . person would understand that the statement referred to TT (inc l. w/ in small group)
d. (3) Publicatio n: Someone other than ll received and reasonabl y understood th e defamatory matter due to L'i.'s
negligent or in tentio nal publication ( inte nt to publi sh, not to defame)
e. (4) Dam age to ff s reputation mu st be proved dep end ing on type of defam ati o n (libel/sland er)
i. Libel: Any comm·n that has so me permanence (e.g., writing, radio, TV , photo). General damages presu med
ii. Slander: Spoken, oral defamation. 11 must pro ve special damages , unl ess s la nd er per se (impute improper
conduct in 11 's trade, false accusation of crim e. current loathsome disease, lack of c hastity of woman)
f. Constitutional iss ues (furt her analyze on top of above co mmon law e lem e nts if defa mat ion in vo lves public matte rs)

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MAGICSHEETS I TORTS 4/4
1. (5) Falsity: TT must prove that the statement was fa lse. If not, TT may still rai se IIED or privacy torts
11. (6) Fault of 6: If TT is .. . Public offic ial or figure? A public figure has ach ieved fa me or notoriety or has
vo luntaril y ass umed a central role in a publi c co ntroversy. D must show malice (knowledge of falsity of
statement or reckless disregard as to truth or falsity). Private figure. public concern? D must prove
negligence regard ing falsity. Private concern? Prove publication only for recovery
g. DEF ENSES
1. Qualified privil ege: Comm'n that appears reasonably necessmy to protect 1/ 'sown legitimate interests or
on a matter of interest to 3P , e.g., past employer' s reference, reports of public hearings, ne wsworthy even ts
I. 6 loses privilege ifh e acts with malice (know falsity or reck less ly disregard truth) or outside scope
11. Truth: If 6 can prove substantial truth, it wo ul d be a defense (D's burden to prove fa lsity) ($9780 vs.$ I Ok)
111. Absol ute privil ege until repeated in a context where there is no priv il ege: Statemen ts made by legislators
(or aides) on fl oor, betweenfederal executive officials,judicial proceedings, co mm'n betwee n spouses
VI. NU ISANCE ( not a tort but a type of harm by negligent or intentional acti on)
a. Private nuisance is a substantial and unreasonable interference with D's use and enjoyment of possessed land by
intentional, negligent, or abno rmall y dangerous conduct
i. Substantial: Offensive, inconvenient, or annoying to an average perso n in the comm unity
ii. Unreaso nab le : Harm (not to property value)> utility
b. Public nuisance is an unreasonable interference with a health, safety, moral right co mmon to the general public
i. Suit typically brought by gov't actor. Private party can bring action if he suffered unique damage
Vil. PRIVACY TORTS
a. Commercial appropriation: Unauthori zed (no permission or negligent in veri tying) use of fl' s picture or name for
L'.'s commercia l purpose. D need not be identified by name so long as clear that the ad is m eant to dep ict that person
b. Intrusion into seclus ion: 6 intentionall y interferes with fl' s zone of pri vacy in a manner offensive to a reasonab le
perso n (for examp le, eavesdropping, wiretapp ing, stalking)
c. Pu bl ic disclo sure of private true facts : Disclosure of true facts that I) wo uld be highly offensive to a reasonab le
person and 2) is not newsworthy
d. Portrayal in a false li ght : Publication of false information that wo uld be high ly offensive to a reasonable person
VI II. MISCELLANEOUS
a. Vicarious liability of employer or supervisor for ...
1. Rcspond eat su perior: Ifan employee is negli gent wi thin scope of emp loyment, under cmployer·s direction .
or whil e serving employer's interest. then employer is vicariou sly li ab le fo r cmployee·s tortious acts
I. Frolic and detour: An employee making a minor detour from the emp loyer's bus iness for own
purposes is stil l acting with in the scope of employme nt
2. Intentional torts by employee are ou tside the sco pe, UNLESS authorized or furthering the business
(e.g., bouncer, bill collector)
3. Special relationships such as uni versity-student may be wi thin the scope
11. Independent contractor: Person who hi res IC is not vicariously li ab le for negligence of IC, UNLESS IC is
engaged in an inherently dangerous activity (excavating) or the duty is non-delegable (work done in public)
111. Em ployee vs. IC: IC if payer has right to control result of the work but not what or how it will be done
1v. Negligent hirin g/gmervis ing: Employers may be liabl e for own negligence by hiring or supervising an
empl oyee or IC
I. Th is is not vicarious liability
v. Joint venture (undertaki ng to carry out objecti ves that associates have equal voice to direct the enterprise):
Act of any associate w/in the scope of the enterprise is vicariously li ab le against the rest
vi. Chil d: A parent is under a duty to exercise reasonable care to contro l his minor child as to prevent
intentional harm or risk of harm to others, if the parent I) kno ws or has reason to know that he can control
his ch ild and 2) knows or should know of the necessi ty and oppo11unity fo r exercising such co ntrol
I. Parents are not vicariously liable for their ch ildren's tort, UNLESS the child co mmitted a to11
wh ile acting as the agent for the parents
2. Negl igent supervision/entrustment: Pare nts may be liabl e for own torts where they had a reaso n to
know of any propensities of the chi ld ; they owe a duty to tho se who mig ht he injured by th e child
b. Misrepresentation. Fraudulent misrepresentation : Materi al misrepresentation made with intent or kno wledge to
mislead , and fl reasonably relied on the mi srepresentation. Negli gent misrep resentat ion : Material misreprese ntat ion
mad e with negligent or innocent scienter, and TI reasonab ly reli ed on th e misrepresentation . rraudulent
nond isclosure: Silence when there was a duty to disclose a material fact, and D reasonably expected disclosure
c. Wrongful instituti on of proceedings. Malicious prosecution: Institutio n of cri minal proceedings v. fl with out
probabl e cause without a proper purpose, fl prevail s on the merits, and D suffe rs damages. Extended to civil cases.
Abuse of process: Wrongful use of process fo r an ul terior purpose+ act or threat against D to acco mpl ish purpose
d. Interfe rence wi th co ntractual relations: 6 knew of valid K b/w D and 3P + acted wit h purpose of havi ng K breached
or made harder to perform + damages
e. Loss of consortium/co mfort/companionship: fl spouse may recover against t:,. for injuring D's spouse and depriving
the benefits of the spousal relationship, including the loss of companionship , co m fo rt, soc iety, and sexual relati ons

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 Torts Multiple Choice Journal
Game Plan Steps
1. Any tort claims?
2. Any defenses?
3. Any special considerations?

MY RULE SOUND BITES MYPONTERS!

Trespass = intentional act that causes physical invasion of land Watch out for accidents that cause cars to enter
land (no IT
Conversion = intentional act that causes interference with right of Not a defense that one is "borrowing" property for
possession in chattel sufficiently serious to warrant full value the benefit of P.

IIED = intentional or reckless + extreme and outrageous conduct
(beyond all bounds of decency) + severe emotional distress
Third party IIED if present, closely related, and defendant knows of
resence
Battery = intentional act+ causes + harmful or offensive contact+ to
another erson
Intentional Tort Defenses
Actual consent invalid if substantially beyond scope of consent or
substantially different from what was consented
Implied consent= apparent consent that reasonable person would
infer from conduct
Capacity to consent= must be legally capable of consent (not of
diminished ca acity)
'.~2~IieNE.G'nl:~Ei~~,, ·
RIP = I) type of accident not normally occurs but for negligence 2)
instrumentality in exclusive possession of defendant; 3) plaintiff not
at fault
N = duty + breach + causation + damages
RPP = balancing test (burden on defendant to avoid risks and the
utility of defendant's conduct vs. probability and probable gravity of
harm from defendant' s act)
NPS = applies only if P. in protected class+ protected harm
NPS is excused for unforeseeable medical inca aci
Actual cause= but for defendant's act no harm or, if multiple causes,
defendant' s act is a substantial factor in brin in about harm
conse uences
An intervening cause is only a supervening force if it results in
unforeseeable results
Press does not enjoy any general extra protections
from torts
Can't switch to a better doctor without consent,
even if surgery does not result in harm (still a
batte )
Can' t use more force than implied
Creates rebuttable inference; thus, not available if
direct evidence or if rebutted by defendant
Not usually foreseeable that one would commit a
crime or intentional tort
Make sure it is a criminal statute and has clear
standards to give rise to duty and breach of duty;
licensing statutes usually do not create NPS but
mi t ·ust be used as evidence ofne li ence
Act must have made some factual difference to be
an actual cause
An one foreseeable in"ured can sue
PC only applies for remote possibilities
Watch out for remote possibilities; this is a policy
consideration; must be reasonably foreseeable
consequence; an intervening cause that is
foreseeable is a valid proximate cause; superseding
causes are called superseding because they cut off
or cancel out defendant's liability; an intervening
cause is a force that takes effect after defendant's

Land owner duty to trespassers = no duty unless known or

antici ated
 Invitee = invited onto land to expressly or impliedly conduct
business (must use reasonable care for safety of invitees to include
duty to make reasonable inspections and warn or make safe non-
obvious dan erous conditions)

Damages = no emotional damages for property loss (must be tied to

h sical in·u or close call)
Egg shell plaintiff= defendant is liable for aggravation of existing
conductions if ne li ent
Failure to act = generally no duty to act unless tortious act created Watch out for creation of peril; defendant's act
peril, special relationship, or undertaking act must be wrongful to create duty to act (neighbor is
probably not a special relationship absent more
facts)
Negligent Misrepresentation applies only to persons for whose Must have a duty
benefit or uidance information is su lied
NIED applies only if defendant should have realized that her conduct
involved unreasonable risk of causing distress which might result in
illness or bodily harm

Ne Ii ence Defenses .
Last clear chance doctrine only available if plaintiff is contributory
negligence AND defendant had the last opportunity to avoid the
accident
Contributory negligence by plaintiff is normally an absolute bar
Comparative negligence reduces plaintiffs share but does not
eliminate it
Assumption of Risk= plaintiff knew and voluntarily assumed risk of
defendant's act
Last clear chance wipes out plaintiffs harm if
defendant had the last opportunity and the plaintiff
did not have the last opportunity to prevent the
harm
Be careful because MBE assumes pure
comparative negligence not contributory
negligence. Problem must state that jurisdiction is
a contributo ne Ii ence ·urisdiction
Pure= plaintiff recovers defendant's actual share
of fault des ite amount of laintiffs fault
'f"'"._,JIC~"'....-1"'"-- - - ~ - - - - - - - T

;1:,:i~~";;Jlijj.ni~,1,.., - ~ .::fr : ~, .~

Must still show causation and dama es Make sure that roximate cause is met

••·· SL Defenses

Negligence requires showing seller failed to exercise reasonable care

as a seller under similar circumstances to foreseeable customers
Retailers have a duty to inspect if reason to believe product is likely
defective and they are only liable if reasonable inspection would
have uncovered defect
Strict Product Liability = strict duty by commercial supplier Type of defects= 1) manufacturing 2) design=
(existence of defect when left defendant's control) + breach - unreasonably safe+ reasonable alternatives or 3)
supplying defective product that is unreasonably dangerous + failure to warn
causation + damages Make sure seller is a commercial supplier
No rivity of contract is re uired for SL
No privity required for strict liability but privity required for Most courts ignore privity for warranty claims
warranty claims (buyer, famil , and uest)
Design defect = must show alternative feasible design and product
not reasonable safe

,i--
Implied warranty of merchantability = fit for ordinary purposes Limited privity for warranty claims (warranty
claims requires "loose" horizontal privity = buyer,
famil , and uests)

Private nuisance = substantial and unreasonable interference with

use and en·o ent of land
Public nuisance = substantial and unreasonable interference with
health, safety, or convenience of public in general (plaintiff must
rove s ecial dama es beyond ordinary dama es incurred by ublic)
Defamation = defamatory statement+ of or concerning plaintiff + at
least ne Ii ently communicated to third erson + dama es

Misrepresentation ~ misrepresentation of material fact+ knowledge Normally requires active concealment unless
or reckless disregard for falsity + intent to induce reliance + actual affirmative duty to disclose, specify query, or
·ustifiable reliance+ dama es existence of s ecial relationshi
PDPF = public disclosure + private matter + highly offensive to RP
+ not of le itimate ublic concern
CA. Defenses? .
Qualified Privilege = to provide fair and accurate report of
proceedings (applies when statement bears some relationship to
interest and the statement is made in furtherance of interest;
destro ed onl if communicated with actual malice)
Implied consent = P. voluntarily waives privacy by exposing private
facts in ublic

Respondent superior available for intentional torts if force authorized Check the status of worker (and scope)
by employer, friction generated in employment, or in furtherance of
em lo er's interest
Jud e not ·ury decides a licable standard of care Therefore ·ud e decides if statute creates NPS
Guest statute makes driver liable only for gross negligence (to
rotect hos itali and revent collusion)
Best defense is a good offense (affirmatively negating element of
laintiffs rima facie case
Community Property - Checklist

(1) Basic Presumptions [you MUST put this at the top of EVERY community property essay]

California is a community property state. All property acquired during the marriage is presumed to be
CP, while all property acquired before marriage or after permanent separation, or by gift or inheritance
is presumed to be SP. Property acquired in a SP state by either H or W before they became domiciled
in CA is quasi-GP. Upon death or divorce quasi-GP is treated as CP.

The characterization of an asset as either CP or SP depends on three factors: (1) the source of the
asset, (2) any actions by the parties that may have altered the character of the asset, and (3) any
statutory presumptions that apply to the asset.

In order to determine the character of any asset, the courts will trace back to the source of funds used
to acquire the asset. A mere change in form of an asset does not change its characterization. E.g.,
capital gain from the sale of SP is SP.

(2) Characterize each asset

Personal injury CP if cause of action arose during marriage, but awarded to injured spouse @ divorce
awards
Personal injury SP of the tortfeasor spouse unless occurred while acting for the benefit of the community
liability
Retirement benefits CP if earned during the marriage-+ apply the time rule to apportion between CP and SP .
Disability CP if taken in lieu of retirement benefits-+ apply the time rule .
pay/workers'comp SP if intended to replace future earninqs.
Severance pay Split in authority -+
CP b/c result of work done during marriage. SP b/c replaces future wages
Stock options CP b/c form of employee compensation. -+ apply the time rule
Business/professional CP to the extent earned during the marriage
good will
Education and Not property. But, community is entitled to reimbursement for educational expenses paid
training by CP funds if the the educated spouse's earning potential increased as a result of the
education . However, there will be no reimbursement if (1) the commun ity substantially
benefited from the education (1 0+ years) or (2) both spouse received community funded
education.
Assets purchased on CP. But, look to the primary intent of the lender
credit during marriaqe
Business owned Community labor used to enhance value of a SP business -+ the community entitled to a
before marriage, share of the increased value. Two ways to calculate the community's share
which increased in • Pereira accounting -+ increased value primarily due to community labor.
value during Value of business at beginning + fair rate of return = SP, the rest is CP
marriage. • Van Camp accounting -+ increased value due to the unique nature of SP asset
Fair salary for community labor x years of marriage - salary already received -
amounts already paid to community expenses= CP, the rest is SP.

(3) Altering the Character of an Asset

a. Pre-marital agreement must be in writing, voluntarily signed by both parties
i. Voluntary? Bonds case v. 2001 statute
ii. Unconscionable? Full, fair and reasonable disclosure. Waiver of spousal support-+ must
be represented by counsel.
b. Transmutations:
i. Pre-1985 -+ oral permitted
ii. Post 1/1/85-+ must be in writing , signed by the party whose interests affected , express
(4) Effect of How Title is Taken
a. Married Woman's Special presumption: Property taken in W 's name alone pre 1975 = her SP
unless (1) H shows other reason or (2) w/out H's knowledge or consent.
i. Property taken as H & W pre 1975 = SP, TIC
ii. Property taken as H & W post 1975 = CP
 b. Property taken in joint title:
i. At death: Lucas provisions apply
1. Property taken in joint title= CP, unless contra agreement (oral or written)
2. Any contribution of SP = gift-+ no reimbursement
ii. At divorce: Lucas provisions do not apply
1. Pre-1984: Property taken in joint tenancy = SP of each spouse ½ interest each
2. Post-1984: California family law applies-+ property taken in joint title= CP
unless contra written agreement.
a. But, may seek reimbursement for contributions of SP to DIP.
3. A spouse who deeds SP into jointly titled property is entitled to a right of
reimbursement for the fair market value of the property at the time it was deeded
into joint tenancy. Note: conflict with transmutation rule.
c. Property taken in separate title (post 1975) -+ apply source rule. Exhaustion or direct tracing.

(5) Effect of Parties Actions on Characterization

a. Pro rata rule: community takes a pro rata portion of the property measured by the % of principal
debt reduction attributable to CP. Applies to:
i. Installment purchase made before marriage, and subsequent payments made w/ CP
ii. Land inherited during marriage, mortgage paid off w/ CP
iii. Whole life insurance purchased before marriage, premiums paid w/ CP
b. Reimbursement Rules:
i. CP used to improve SP-+ improvements become part of the SP. May seek reimbursement
for greater of cost of improvement or increased value attributable to CP unless one spouse
uses CP to improve other souses SP, then usually presumed a gift.
ii. SP used to improve CP
1. At death -+ Lucas rule-+ presumed gift-+ no reimbursement unless contra
agreement
2. At divorce-+ anti-Lucas statute-+ reimbursement for DIP
c. Commingled Bank Accounts:
i. Does not transform or transmute SP into CP, but burden on spouse claiming SP to show
that each asset acquired was purchased w/ SP funds (tracing or exhaustion)
ii. Family expenses presumed paid w/ CP
(6) Management & Conveyances of CP
a. During the marriage, each spouse has equal management and control of all community assets.
Thus, each spouse has full power to buy or sell CP and contract debts w/out the other spouse's
joinder or consent. Note: does not apply to quasi-GP.
b. Exceptions:
i. Spouse managing CP business has primary management and control
ii. One spouse cannot encumber personal property used in the family dwelling or clothing
w/out written consent from other spouse. Trx is voidable at any time.
iii . Both spouses required to convey community real property. (1 yr Sol if sale to a BFP. If
not a BFP, voidable at any time. Must refund purchase price) .
iv. Neither spouse can make an inter vivos gift of CP w/out the other spouse's consent.
Voidable until death of gifting party, then non-consenting spouse may only recover½ CP.
(7) CP & Creditors
a. All CP and the debtor's SP are liable for the debt of one spouse incurred before or during the
marriage. Except earnings of the non-debtor spouse cannot be reached for premarital debts if held
in a separate account and not commingled w/ CP funds .
b. SP of non-debtor spouse can only be reached for satisfaction of the necessary debts of the other.
(8) Distribution
a. At divorce: 50/50 unless the interest of justice requires otherwise.
b. At death:
i. May devise all SP and ½ CP by will
ii. No will, survivor entitled to all CP, 1/3 - all of SP.
c. Quasi-GP treated as CP
d. Quasi-marital property (putative spouse) treated as CP
(9) Preemption
a. Supremacy clause -+ fed law preempts inconsistent state law. In some instances, fed law
preempts CA from applying community property principals to certain assets: US savings bonds,
federal homestead claims, military life insurance benefits.

(5
APPROSHEETS J CA COMMUNITY PROPERTY
First things to check!
• Watch for crossover with WILLS or TRUSTS
.• Recite basic presumptions before anything else:
California is a community property (CP) state. Property acquired during the marriage is presumptively CP. Property
acquired before the marriage, by gift, will, or inheritance, or after termination of marriage, or income acquired from
such property is presumptively separate property (SP). [If the facts mention another state outside CA: Quasi-CP
(QCP) is property acquired by either spouse that would have been CP had the spouse been domiciled in California at
the time of acquisition.] With these principles in mind, each item of property will be examined.
• Prerequisite to apply CP law: Determine whether parties were in a valid marriage or an alternative to marriage
o Quasi-marital property (QMP) is property that wou ld have been CP/ QCP under a valid marriage
• Note any dates given (e.g., a timeline of events). Determine if any new rules apply ...
o From 1975: Married woman's special presumption no longer applies
o From 1985: Transmutation and premarital agreement must be in writing to be enforceable
o 1986-2002: Premarital agreements must be voluntary
o From 1987: At divorce, SP is entitled to reimbursement for Joint property purchased by spouses
in/after 1987 (anti-Lucas)
o From 2002: Presumption of involuntary premarital agreements unless 3 requirements met
• For each cal l (typically a particular asset or liability), consider the below topics based on what is asked for ...

Characterization of asset: How much of the asset is CP. SP, OCP or OMP?
• Source of property? Initial characterization based on basic presumptions
o Commingled property acquired with commingled funds (CP + SP)?
• Determine CP and SP interests by apportioning
• Proponent of SP wanting to claim SP can identify SP with tracing (two tracing methods)
• Presumptions? Check if any basic CP presumptions apply (can rebut by showing SP source or agreement)
• Actions taken to change the character of the property or to rebut CP presumptions?
o Premarital agreement (agreement before marriage)
o Transmutation (agreement during marriage)
o Situational - assets characterized depending on various situations . Major ones include:
• Personal injury award: Who is the tortfeasor?
• SP business • Pereria vs. Van Camp
• CP business • business goodwill is CP (two valuation methods)
• Credit acquisition (property purchased with credit or loan s) • )s!nder's intent test
• Disposition? See below

Characterization of liability: What is the spouse's liability in the debt or liability?

• For debt incurred before/during marriage (while not separated): CP is liable for such debts
• For debt incurred after dissolution of marriage: Did debtor spouse act for the benefit of the commun ity?
• Tort liability: Did the tortious spouse act for the benefit of the community?
• Remember if joint title to property and not seeking distribution, each spouse still has½ interest in SP

Any entitlement to reimbursement for prior contribution to CP or SP?

• A spouse who contributed SP may be entitled to reimbursement
o A spouse who contributed large SP would want SP reimbursement, while a spouse who contributed
small SP would want CP reimbursement for bigger split late r
• Major situations for re im bursement: acquisition of property. im_P-rovem~nt by community or a spouse,
education or training (rebuttable presumption). payment of debts

Disposition: What happens to the property at divorce or death?

• Distribution at divorce: CP divided "in kind" (entitled to one-half interest), with EXCEPTIONS to equal division rule
o If joint asset, SP may be entitled to reimbursement for contribution to purchase (anti-Lu cas)
• Distribution at death: CP of dying spouse distributed depending on whether he dies with will or without will

© 207 5-16 www.M akeThisYou rLastTi me. co m

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APPROSHEETS I CA COMMUNITY PROPERTY

I First paragraph: State the basic presumption

!
I Determine the type of marriage
~ Valid marriage?
Married non-CA?
(QCP)
Alternative to ma rriage?
- Putative spouse?
- Marvin action?
- Marriage b:i estOQQel?

H For each "property'' (asset or liability in question) ...

y Characterize the asset

~ Source of property?
Presumptions (CP/SP) that apply?
Actions to change cha racter, if any?

l
Situational characterization, if any?
- Personal injuri award?
- SP biz (Pereira vs. Van Camp)?
- CP biz (business goodwill valuation)?
- Loans or credit?

y Characterize the liability I

I
Source (and time) of debt?
-
Situational - tort liabilitt?

l-.j If spouse contributed to acquiring or improving property (incl. income potential) ...

y The community (CP) or a spouse may be entitled to reimbursement

I Disposition?
r-
y At divorce
~ Equal division of CP
- EXCEPTIONS?
~ Joint title?
Anti-Lucas

At death of a spouse
~ CP division depends
on testacy/intestacy
---+ Joint title?
Lucas
(See Wills Approsheet)
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 Bar Review

I REMEDIES
TORT REMEDIES

I. DAMAGES
A. Compensatory Damages: Plaintiff is entitled to compensatory damages to put her in the position she
would have been had the wrong not occurred. Must show:
a. Causation: "But for ... "
b. Foreseeability: The injury must been foreseeable at the time of the tortuous act
c. Certainty: The damages cannot be too speculative.
i. Applies to economic losses (special damages), but not non-economic damages
(general pain and suffering, disfigurement)
ii. All or Nothing Rule: For future damages, plaintiff must show that they are more likely
to happen than not.
d. Unavoidability The plaintiff must take reasonable steps to mitigate the damage
e. Calculation: single lump sum payment, discounted to present value. Forget inflation.
B. Nominal Damages: Where the plaintiff has no actual injury, the court may award nominal damages to
serve to establish or to vindicate the plaintiff's rights .
C. Punitive Damages: Where the plaintiff's injury results from "willful, wanton, or malicious conduct' on
the part of the defendant, the court may award punitive damages to punish the defendant.
a. Plaintiff must first have been awarded compensatory, nominal, or restitutionary damages.
b. Calculation: Must be relatively proportional to actual damages. USSC: single-digit multiple
of actual damages unless the defendant's conduct is extreme.

II. RESTITUIONARY REMEDIES

A. Restitutionary Damages: Where the defendant has been unjustly enriched , the court may award
damages based on the benefit to the defendant.
a. The amount is calculated based on the value of the benefit.
b. However, where both compensatory and restituionary damages are available, plaintiff cannot
get both . Instead, she must make an election of the two. Generally, the plaintiff should be
awarded the larger sum of the two.
B. Replevin: In an action for replevin, the plaintiff may recover possession of specific personal property.
a. Must show: (1) that P has a right to possession, and (2) there is wrongful withholding by D.
b. Timing: As long as D is still in possession, P can recover the chattel before trial.
i. But, to do so, plaintiff will have to post a bond.
ii. And, defendant may defeat an immediate recovery by posting a re-delivery bond.
Through which, the defendant can keep the chattel until after the trial.
c. Generally coupled with damages for lost use of the benefit during the wrongful withholding.
d. No recovery is sale to a Bona Fide Purchaser
C. Ejectment: In an action for ejectment, the plaintiff may recover possession of specific real property.
a. Must show: (1) P has a right to possession, and (2) there is a wrongful withhold by D.
b. Only available against defendant who has possession of the property.
c. Usually coupled with damages for lost use of the benefit during the wrongful withholding.
D. Constructive Trust: Equitable remedy imposed by the courts when the retention of property by D-
wrongdoer would result in unjust enrichment. D serves a "trustee" and must return the property to P.
a. Legal remedies muse be inadequate (e.g the defendant is insolvent or the property is unique).
b. Tracing: P can follow the property to whatever form it takes, as long as the trust re can be id-ed
c. Bona fide purchasers prevail over plaintiff
d. Plaintiff prevails over unsecured creditors.
E. Equitable Lien: where the defendant has improperly acquired title to a property, an equitable lien allows
the court to order an immediate sale of the property, and the monies received will go to the plaintiff.
a. Must show (1) D misappropriated P's property creating a debt or obligation to pay, (2) P's
property can be traced to property held by D, (4) retention would - unjust enrichment.
b. If the proceeds from the sale are less than the fair mkt value of the property when it was taken,
a deficiency judgment will issue for the difference and can be used against D's other assets.
c. Where misappropriated money is used to improve property, only an equitable lien is available.
(e.g house remodel)
d. Same rules as constructive trusts: tracing allowed; BFP's prevail.

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 Bar Review

Ill. INJUNCTIVE RELIEF

A. Temporary Injunctive Relief: To recover to recover temporary inj. relief, P must meet a two-part test:
a. Irreparable Injury: P must show that without the injunction, she will incur irreparable injury
while waiting for a full trial on the merits.
i. Balancing Test: harm to P if injunction is denied v. harm to the D if injunction is granted
ii. Where D created the hardship - even if substantial - balance likely to weigh in P's favor
b. Likelihood of success: P must show that he/she has a strong likelihood of success on the
merits. The court will look to the probability of this success.
i. This is not an inquiry on success of obtaining a permanent injunction .
ii. The court should also impose a bond requirement on the plaintiff to reimburse the
defendant if the injunction injured him/her and the plaintiff does not succeed.
B. Permanent Injunctive Relief: P must meet a five-part test [I Put Five Bucks Down]
a. Inadequate Legal Remedy. Money damages may be too speculative; D may be insolvent; the
sheriff may be unable or unwilling to enforce a replevin or ejectment action.
b. Property lnterest/Protectable Interest
i. Traditional View: equity will grant relief only were there is a protectable property right
involved .
ii. Modern View: Any protectable interest will suffice.
c. Feasibility of Enforcement only an issue with mandatory injunction. Enforcement problems
may stem from (1) the difficulty of supervision or (2) concern with effectively ensuring
compliance.
d. Balancing of Hardships: Plaintiffs benefit v. Defendant's hardship+ the public's hardship [But,
if the defendant's conduct was willful, no balancing]
e. Defenses, lack thereof:
i. Laches: Where there has been an unreasonable lapse of time between when the P
learned of the injury and when the P filed the lawsuit, and that lapse of time is
prejudicial to the D, !aches will cut off the right to injunctive relief (but not$ damages).
ii. Unclean hands: The persons seeking equitable relief must not be guilty of any
improper conduct that is related to the lawsuit.
iii. Impossibility: it would be impossible for the D to carry out the terms of the injunction .
iv. Free Speech: Injunction may be denied on free speech grounds.

2
 Bar Review

CONTRACT REMEDIES

I. DAMAGES
A. Compensatory Damages: based on injury to the P
a. Requires: (1) causation ; (2) foreseeability (tested at the time of formation ; (3) certainty; (4)
unavoidability (mitigation)
b. Consequential damages: available for related damages foreseeable at the time of formation
c. Seller breaches a land sale K: CD = out-of-pocket loss OR benefit-of-the-bargain
B. Nominal damages are also allowed . But, punitive damages are NOT allowed (if D's conduct is willful,
characterize as a tort, so you can get PDs)
C. Liquidated damage clauses are permissible, if they are valid
d. Damages are very difficult to ascertain at the time of K formation
e. This was a reasonable forecast of what they would be.
Result: if valid---+ only liquidated damage amount; if invalid---+ actual damages available.

11. RESTITUTIONARY REMEDIES

A. If K is unenforceable AFTER the P has performed (e.g. mistake, capacity, SoF, illegality)
a. P can get restitutionary damages for property/money give to, or services rendered for D for the
VALUE of the BENEFIT.
i. Not necessary to find that the D actually benefited, only that D received a benefit
ii. If the value of the services is greater than the K rate, P can still recover it.
b. P can get the property back if it is un ique or D is insolvent.
c. Quasi-K: P awarded the reasonable value of D's illgotten gain or the difference between the
present value of the good less the value before the benefit conferred by P.
B. If K is breached.. .
a. Where P is the non-breaching party:
i. P may recover restitutionary damages for property/money given to, or services
rendered for D for the VALUE of the BENEFIT.
ii. P can get the property back if it is unique or D is insolvent.
b. Where P is the breaching party:
i. Traditional View: P may recover NOTHING
ii. Modern View: P may recover restitutionary interest, but it CANNOT be greater than the
K rate and is reduced by any damages suffered by D as a result of the breach .

Ill. SPECIFIC PERFORMANCE

A. 5 part check-list - [I 'm Doing Fine Mom and Dad] P must show:
a. Inadequacy of legal remedies. Damages may be inadequate b/c (1) they're speculative, (2)
defendant is insolvent; (3) multiple suits are necessary; (3) the thing bargained for is unique
(tested at the time of litigation, not K formation). Liquidated damage clause 'I-$ is inadequate
b. Definite and Certain Terms: Terms of the K must be sufficient certain to constitute a valid K
c. Feasibility of enforcement. Jx. over the parties? Too much court supervision needed?
d. Mutuality of remedy: must show the other side can also secure performance. Only an issue
where P lacks capacity: ct will reject mutuality if it feels secure that P can and will perform.
e. Lack of Defenses: Unclean hands; !aches; unconscionability; mistake; misrepresentation;
equitable conversion (sale to BFP) ; SoF (satisfied if (i) part performance (ii) in reliance on K).
B. Special problems:
a. Deficiencies fact pattern
i. Seller as P: CAN enforce K if the defect is minor. CAN NOT enforce K if the defect is
major unless the seller can cure the K before closing .
ii. Buyer as P: CAN enforce the K even if the defect is major (abatement - court will lower
the purchase price to take into account this defect) . CANNOT enforce the Kif the
defect is very major.
b. Time of the Essence Clause - wl forfeiture provision . Equity abhors forfeiture.
i. Avoid forfeiture (and award SP), where: (1) loss to the seller is small ; (2) tard iness is de
minims ; (3) waiver - seller has accepted late payments in the past; (4) buyer would
suffer undue hardship
ii. Modern trend : cts would give P restitutionary relief if SP were not granted. But, if buyer
has not made even an initial payment - the forfeiture clause will be strictly enforced .

3
 Bar Review

c. Equitable conversion: real property interest of the buyer and seller are switched upon
execution of the land K.
i. Thus, the buyer will be regarded as having the real property interest (the specifically
enforceable right to the land).
ii. Seller will be regarded as having the personal property interest (the specifically
enforceable right to the money).
d. Personal Services Ks: Covenants Not to Compete
i. The covenant must protect a legitimate interest
ii. The covenant must be reasonable in both is geographical and durational scope.

IV. RESCISSION: equitable remedy whereby one who is fraudulently induced into entering a K may rescind K.
2-Step Analysis:
A. Determine if there are grounds for the rescission :
a. Formation grounds: (1) mistake; (2) misrepresentation (3) coercion; (4) undue influence; (5) lack
of capacity; (6) failure of consideration; (7) illegality.
b. Mutual mistake of material fact= grounds
c. Mutual mistake of collateral fact :f. grounds
d. Unilateral mistake :f. grounds UNLESS the non-mistaken party knows or should have known of
the mistake.
B. Determine if there are valid defenses: Unclean hands; !aches (negligence is NOT a good defense).
C. Special Problems:
e. Election of remedies :
i. P sues for damages first: rescission is NOT allowed
ii. P sues for rescission first: damages ARE allowed
f. Availability of Restitution: if a P who is entitled to rescission has previously rendered
performance on the K, he/she can get compensated for it or get the property back via
restitution .
g. Legal Rescission: P accomplishes this by her own actions.
i. P gives notice and tenders back any consideration received
ii. P then sues for restitution for anything given to D.

V. REFORMATION: ct. modifies a written agreement to conform w/ the parties' original understanding. 3-Steps
A. Determine if there is a valid contract
B. Determine if there are grounds for reformation
a. Mutual mistake
b. Unilateral mistake IF non-mistaken party KNOWS of mistake
c. Misrepresentation
C. Determine if there are valid defenses: unclean hands, !aches

4
 BarEssays.com

Essay Attack Templates

Torts
 BarEssays.com Essay Attack Template
Negligence
Negligence

1
Negligence requires (1) duty, (2) breach, (3) causation, and (4) damages .

Under the majority, a defendant is liable to plaintiffs within the foreseeable zone of danger.
Under the minority, a defendant who breaches a duty to someone breaches a duty to 3all harmed.

Here,

Thus,

4
[ Firefighters ' Rule

The Firefighters' Rule, although named with reference to firefighters , bars injury claims by
public servants that result from risks unique to the plaintiffs inherently dangerous work.

Here,-,
, ' t
'
"
Thus,] ~I
' 11,,

5
( Duty to Control Third Parties

Generally, there is no duty to control third party acts to avoid injury to a plaintiff, except when
the defendant had the actual opportunity, ability, and authority to control third paiiy acts.

1
Defenses are not part of the prima facie case. Defenses are for the defendant to raise, not the plaintiff to prove.
"2 steps:
I. Does defendant owe a duty? Defendant owes a duty if plaintiff is a foreseeable plaintiff Apply
majority and minority views.
2. lf defendant owes a duty , what is the duty? Determine standard of care.
3
In the analysis, indicate defendant owes plaintiff a duty because plaintiff is in the "all" category . Defendant
breaches a duty to all harmed (foreseeable or not) as a result of the breach.
4
Firefighters ' Rule triggered when the plaintiff is a public servant (i.e. police, fire) . Firefighters ' Rule is not a
subtopic of assumption of the risk, but a rule that limits the duty of care that members of the public owe. A member
of the public whose conduct precipitates the intervention of a public servant does not owe a duty of care to the
public servant with respect to the negligence that caused the intervention . Neighbarger v. lrwin Industries,
Inc. , 8 Cal.4th 532, 538 (1994). The public servant is employed to confront the risks.
5
If no Duty to Control Third Parties , conclude no duty for Negligence. Example: Parent has oppo1iunity, ability ,
authority to control whether schizophrenic child takes pills. If child does not take pills and assaults plaintiff, parent
owes duty to plaintiff because had opportunity, ability, authority to ensure child took pills.

BarEssays.com Essay Attack Template

Negligence
Here,

Thus,]

6
Standard of Care - Default

Generally, the standard of care imposed is that of a reasonably prudent person under the
circumstances as measured by an objective standard.
7
Here,

Thus,

Standard of Care - Professional

8
A professional person is expected to exhibit the same skill, knowledge, and care as another
practitioner in the same community.

Here,

Standard of Care - CliiTd

9
Generally, the standard of care imposed is that of a reasonably prudent person under the
circumstances as measured by an objective standard. A child must act as a reasonable person
of like age, intelligence, education, and experience. However, when a child engages in an
adult activity, s/he must conform to the same standard of care as an adult engaged in such
activity.

6
3 steps:
I. Type of person the defendant is (i.e. child, professional). Tailor the rule for the standard of care that fits the
defendant.
2. Special relationship between defendant and plaintiff (i.e. common carrier - guest, employer - employee).
3. Use reasonable prudent person as default ifno other applicable standard.
7
In the analysis, explain what standard of care applies to the defendant. Do not analyze whether the defendant
meets the standard of care; save that for Breach.
8
Professional means following an occupation, not learned professional (i.e. lawyer, doctor, accountant). Example:
Caterer who prepares food needs to apply "cook" standard of a care.
9
2 steps:
I. See if defendant is child (under age 18) .
2. Determine if adult activity: a. Yes: Apply adult reasonable person. b. No: Apply child reasonable
person .

BarEssays.com Essay Attack Template 2

Negligence
Here,

Thus,

Standard of Care - [Common Carrier/Innkeeper] - Guest

Under common law, and modernly, in some jurisdictions, [1°common carriers/innkeepers] are
held to the highest duty of care, liable for slight negligence, consistent with practical business
operation.
11
1--Iere,

Thus,

Standard of Care - Automobile Driver - Guest

Under the majority, the standard of care imposed on automobile drivers towards guests and
passengers (confer economic benefit for ride) is that of a reasonably prudent person under the
circumstances. Under the minority, a guest may not recover based on negligence. The guest
must establish the defendant acted willfully and wantonly according to guest statutes.

Her~,
Jl_:. ·\.

'E';lms, ~
'\ •~,:,_.,
Breach

Where a defendant's conduct falls short of the applicable standard of care owed to the
plaintiff, the defendant breaches the duty.
12
Here,

Thus,
13
[ Res Ipsa Loquitur

In the absence of direct evidence, the defendant's breach may be inferred under the res ipsa
loquitur doctrine, if the plaintiff proves the accident (1) was the kind that ordinarily does not

10
Tailor rules to facts. Example: If facts about common carrier, insert common carrier only.
11
If facts on bus, plane, train, hotel, raise common carrier/innkeeper standard of care. Evaluate if there is a common
carrier/innkeeper- guest relationship. lfno, use default standard of care (reasonable person) or another applicable
standard.
12
Compare what defendant does with what other people with the same standard of care under the circumstances do.
13
Res lpsa Loquitur triggered when no direct evidence of breach .

BarEssays.com Essay Attack Template 3

Negligence
occur without negligence, (2) was caused by an agent or instrumentality within the
defendant's exclusive control, and (3) was not due to plaintiff's action.

Here,

Thus,]

Causation

The plaintiff must prove the defendant's acts are the actual cause (cause-in-fact) and proximate
(legal) cause of the plaintiffs injury.

Actual Cause

lf the plaintiffs injury will not occur but for the defendant 's acts, the defend ant is the actual
cause of the injury . If there are multiple causes of the injury, the defendant is the actual cause
14
when the defendant's acts are a substantial factor in causing the injury.

Herc,

Thus,

· Proximate Cause

15
Proxim~te cause exist~ when the plaint~f..srin'jury is a foreseeable resuJt of defendant's acts.
When multiple forces contribute to the injury, an unforeseeable intervening event severs the
causal connection between a defendant 's acts and a plaintiffs injury.

Here,

Thus,

16
( Eggshell-skull Plaintiff

A defendant is liable for the full extent of a plaintiffs injuries due to preexisting medical
condition or vulnerability, even if the extent is unforeseeable.

14
If there are multiple causes, show defendant's acts contributed to the plaintiff's injury . Substantial factor means
defendant sets in moti on forces that lead to plaintiff's injury. Conduct is not a substantial factor in causing injury if
the same injury occurs without the conduct.
15
2 steps:
l. Show the plaintiff's injury is foreseeable from defendant's breach.
2. Evaluate if intervening events ( events between the defendant's act and the plaintiff's injury ) are
unforeseeable to sever the defendant's liability .
16
Eggshell-skull Plaintiff triggered by facts on the plaintiff having unique physical attributes (i.e. hemophiliac), or
suffering unforeseeabl e injuries such as fear, anxiety.

BarEssays.com Essay Attack Template 4

Negligence
Here,

Thus,]

Damages

17
Negligence requires personal injury or property damage. Claims for purely economic loss
are generally not allowed.

Here,

Thus,

18
[ Compensatory Damages

[In personal injury, the plaintiff may recover special and general damages, including lost
earnings, medical expenses, and pain and suffering. Foreseeability of the extent of harm is
generally irrelevant because a defendant takes a plaintiff as s/he finds the plaintiff.] [In
property damage, the plaintiff may recover the difference between the fair market value of
the property immediately before, and after, the injury, or repair costs if the costs do not
exce_~g "the pro,prr!Y value.] Dam3:ge,s,J nust be causal and certain.
'~~ , I ~"

(
Here,

Thus,

Punitive Damages

A plaintiff may recover punitive damages if clear and convincing evidence establishes the
defendant acted willfully and wantonly, recklessly, or with malice .

Here,

Thus,]

19
Mitigation

17
Specify the types of harm allowed .
13
For Damages element, just indicate the personal injury or property damages . lfthe interrogatory specifics a
damages issue, detail the types of damages . Example : Under what theory might Patron bring an action for damages
against Homeowner?
19
Analyze whether damages unavoidable under Mitigation heading. Mitigation deals with plaintiff's acts after an
injury. Contributory or comparative negligence deals with plaintiff's acts while an injury occurs.

BarEssays.com Essay Attack Template 5

Negligence

i1
The plaintiff has a duty to take reasonable steps to mitigate damages; failure to do so precludes
recovery of additional harm caused by injury aggravation.
20
Here,

Thus,

21
Dcfenses

[2 2Contributory/comparative negligence, and assumption of risk require fault by the plaintiff.

Here, [Plaintiff] did not contribute to the [describe injury], or was aware of the [describe danger]
to knowingly and voluntarily assume the risk of harm. Thus, no defenses applied.]
23
Contributory/Comparative Negligence ·

Contributory negligence deprives a plaintiff from damages when s/he contributes to the legal
cause of injuries by failing to exercise reasonable care for plaintiffs own safety. At common
law, contributory negligence is a complete bar to recovery. In "pure" comparative negligence
jurisdictions, a plaintiffs contributory negligence reduces the recovery of damages by the
proportion plaintiffs fault bears to the total harm. In "partial" comparative negligence
jurisdictions, the plaintiffs recovery is barred ifs/he is more than 50% at fault.

24
Here
,·,·l .

1:hus,

Assumption of Risk

20
In personal injury fact pattern, analyze the plaintiff has a duty to seek appropriate treatment to effect a cure or
healing, but the treatment needs to be reasonable. Example: Requiring plaintiff to undergo surgery may not be
reasonable if surgery involves complications and taking a body part from a relative.
21
lfthe interrogatory asks for claims or theories ofrecovery , do not analyze defenses. lfasked for defenses, or
whether a plaintiff will prevail , do the defenses the facts trigger.
22
When asked for defenses, and the facts do not trigger defenses, still address defenses , but do not use up time to
give the rules on each type of defense. Summarize the plaintiff did not contribute to the injury, or was aware of the
danger to assume the risk. Conclude no defenses apply.
n Do contributory and comparative negligence under one heading to save time. Analysis is similar, except
contributory negligence is a complete bar to recovery whereas comparative negligence reduces recovery based on
plaintiff's fault
24
Contributory/comparative negligence is an objective test. Evaluate whether plaintiff commits negligence upon
him/herself. 4 steps :
I. Standard of Care: Determine plaintiffs standard of care. Reasonable prudent person is default.
2. Breach: Analyze ifplaintiffbreached standard of care.
3. Causation: Evaluate if breach was actual and proximate cause of plaintiffs injuries.
4. Damages: Conclude damages barred or reduced.

BarEssays.com Essay Attack Template 6

Negligence
 25
Assumption ofrisk is a subjective standard, barring a plaintiff from recovery where s/he is
aware of danger, and assumes the risk of harm arising from the defendant's acts (1) knowingly,
and (2) voluntarily.

Here,

Thus,

[2 6Indemnitv
A tortfeasor who discharges liability is entitled to indemnity when ( 1) actual wrongdoer has a
primary duty, (2) by contract, (3) vicarious liability, (4) strict products liability, and (5)
tortfeasor fails to discover or prevent actual wrongdoer's misconduct.

Here,

Thus,

Contribution

A defendant, who pays more than its apportioned share of damages, has a contribution claim
again.~-t other t,2_rtfeasors jointly al!-~ ~~verally liable to the same plaintiff.
~ 1. •

Here, ~

Thus,]

25
Assumption of risk is a subjective test. Evaluate based on what risks the plaintiff knew or voluntarily assumed .
26
Consider Indemnity and Contribution defenses when facts on multiple defendants. Indemnity means I 00%
liability shifting; full reimbursement. Contribution is liability sharing.

BarEssays.com Essay Attack Template 7

Negligence