Essay 1 - Landlord Tenant:
Tenancy for years (yea right), Tenancy at Will (no), Periodic Tenancy (yes)
Landlord's duty at common law - deliver legal posession of premises
Modern duties, implied warranties of habitability, quiet use and enjoyment (leases construed as contracts)
Inapplicability of habitability to commercial leases
Express warranty of "essential services"
Hit parade of warranty breaches (does lack of water make premises uninhabitable? intefere with quiet use? is it an essential service?)
Is it cold in december, heating doesn't work, mentioning lots of the facts.
Constructive eviction
Landlord cures conditions giving rise to cause for constructive eviction on the same day before tenant gives oral notice of termination of lease
Waiver of right to contend there was a constructive eviction due to failure to give notice prior to curing of the breaches?
Right of either party to terminate a periodic tenancy with adequate notice
Remedies of landlord at common law, let the land sit, collect rent
Remedies of landlord at modern law, duty to mitigate
issue of whether oral notice was adequate
anything else? Contractual theory of recovery for landlord?
Essay 2 - Strict liability in tort / Negligence / Defenses
Strict Liability - defective product, stream of commerce, causation, damages
Negligence - Duty to inspect, duty to warn, breaches, causation, damages
Misuse of product - not a defense to negligence, only to strict liability, no express instructions not to use for hot liquids, not a good defense
Lack of Care - contributory negligence - not a defense to strict liability, failure to exercise due care in following instructions on label, bars negligence claim
Comparative negligence functions to diminish plaintiff's recovery both in strict liability and negligence.
Assumption of Risk was not pleaded by defendant, but could be argued as a defense to either SL in tort or negligence. P disregarded the warning label.
Compliance with saftey commission's prescriptions might establish a rebuttable presumption that product is not defectively designed and that due care was exercised.
"sealed box" defense does not preclude plaintiff's recovery for SL in tort if a dangerous product was placed into stream of commerce, remedy is indemnification.
motion to dismiss for failure to state a claim or because an affirmitive defense applies requires judge to determine if judgment can be granted as a matter of law, he must view evidence in light most favorable to the non-moving party.
Essay 3 - Evidence:call 1 - logical relevance, hearsay, present sense impression, state of mind of mechanic(?), expert opinion
call 2 - logical relevance, hearsay, business records, present recollection refreshed, past recollection recorded, learned treatise(yeah right), state of mind of mechanic (?), best evidence, opinion
call 3 - logical relevance, hearsay, effect on listener, state of mind, opinion
call 4 - logical relevance, hearsay, admission (exemption), admission (california?), not a declaration against interest due to availibility, present sense impression(?), state of mind of declarant
call 5 - logical relevance, legal relevance, hearsay, excited utterance (anonymous declarant ok), present sense impression
PT-A
1) did she have access to confidences?
2) presumption she received confidences
3) were the confidences substantially factually similar? would they be of use in the present litigation?
4) her research used by board of trustees in formulating the medical care for indigents policy
5) her research has provided her with knowledge of internal liablity-shielding company policy and may have contributed the board's orchestration of these internal policies
6) must be disqualified
5) presumption that confidences were shared with her firm
5) irrebutable - minority, rebuttable, majority
6) timely and effective?
7) timliness - discuss conflict-checking program, issuance of memorandum
8) effectiveness - discuss 10 person office, 2 attorney project, her supervisory role, the physical proximity of their offices, the judge's belief that she has not disclosed confidences
9) balance - client's interest in choice of representation vs former client's interest in confidentiality, discuss hardships on both sides, contentions regarding availibility of alternate law firms to represent plaintiff, interest the firm has in keeping the case, precautions the firm should have taken (transfer her to other physical location...)
10) conclude that the ethical wall was sufficient given the circumstanes or insufficient under circumstances after all relevant considerations and tell the judge it is within his discretion to decide either way, since the Model Rules of professional conduct are silent
