Facts: The defendant’s doctor vaccinated O’Brien, who was holding out her arm and waiting in a line to be examined for immunization. O’Brien sued for assault, but Cunard claimed that she had consented.

Issue: Must consent be verbal?

Rule: Silence and inaction when considered in connection with the surrounding circumstances may constitute consent to what would otherwise be an assault.

Facts: The defendant had a reservoir constructed close to the plaintiff’s coal mines. When the reservoir filled, water broke through an abandoned mine shaft and flooded the plaintiff’s mines. Though the contractors and engineers were negligent, the defendant was not personally negligent.

Issue: May a person be liable for damages caused despite the use of due care?

Facts: The defendant, a goldsmith, sold a gem to the plaintiff after

A. Effect

All property acquired during the marriage by either spouse is community property owned jointly by husband and wife. This has its greatest effect when a marriage is dissolved or when property is sold.

B. Strong Presumption That Property Acquired or Possessed During Marriage Is Community Property.

1. Community Property Includes:

a. Income from Community Property (even if the property is only listed in one spouse’s name).

b. Earnings by both spouses during the marriage.

2.
The presumption can be rebutted by a preponderance of the evidence proving that the property is separately owned.

C. Separate Property includes:

1.
Property obtained by either spouse before marriage.

2.
Property obtained by either spouse by gift, devise, or descent.

3.
Five out of eight community property states also include income from all separate property in this category.

A. Husband’s Interest in Wife’s Property

1.
Jure Uxoris (i.e., estate by marital right) was a legal life estate whereby the husband was entitled to the use of all the lands his wife possessed before, or acquired during, the marriage.

a. The husband had a right to occupy and alienate his wife’s land and to collect all its rents and profits.

b. Termination of jure uxoris occurred upon the death of the husband or wife or upon divorce.

2. Curtesy Initiate
Upon the birth of a live child (survival of the child was not necessary), jure uxoris was transformed into curtesy initiate. The effect of this was that the husband no longer lost his rights to his wife’s property if she predeceased him (as he did in jure uxoris).

3. Curtesy Consummate
Upon his wife’s death, the husband’s curtesy was transformed into a curtesy consummate. There is little practical difference between the two types of curtesy.

A. Right of Possession

Each cotenant has the right to possess the entire property (i.e., unity of possession). No cotenant has the right to exclusive possession of the premises.

B. Possession by One Cotenant

Because there is unity of possession, the cotenant in sole possession does not ordinarily have a duty to account (i.e., to pay the other cotenant one-half the rental value of the property).

1. Duty to Account If an Ouster Occurs
If the cotenant in sole possession wrongfully excludes his cotenants from the property, an ouster occurs. The tenant in possession must pay the ousted cotenant his share of the rental value of the property.

2. Duty to Account If the Tenant in Sole Possession Depletes the Land
If the cotenant lessens the value of the land by taking away and selling resources such as coal, timber, etc., he will have to account to his cotenant for the fair share of the revenues he received.

3. Duty to Account for Lease to a Third Party
If one cotenant makes use of the property for his own benefit, he is not required to account for the reasonable rental value. However, if the cotenant rents the property to a third party, he must pay his cotenants their fair share of the rents collected.

A. Joint Tenancy

Each joint tenant has an equal interest in the whole property.

1.
Right of Survivorship is the outstanding characteristic of the joint tenancy. When one joint tenant dies, the decedent’s interest is extinguished and the survivors continue to hold an undivided right in the property. The decedent’s will has no impact on the property. Note: A deceased joint tenant’s creditor cannot reach the surviving joint tenant’s interest.

2.
Four Unities were essential to a joint tenancy at common law and in many states today. Mnemonic: The Pig Is Tenant

a. Time The interests of each joint tenant must be acquired at the same time.

b. Possession Each joint tenant must have an equal right to possess the whole property.

c. Interest All the joint tenants must have identical interests in the property, both as to duration and fractional share.

d. Title All joint tenants must acquire title by the same instrument.

3. Creation of Joint Tenancies
At common law, there was a presumption that a cotenancy was a joint tenancy.

a. Modern statutes now presume that a cotenancy is a tenancy in common (see below) in the absence of language which clearly indicates an intention to create a joint tenancy.

b. Explicit language is required to create a joint tenancy (e.g., “to A and B as joint tenants with right of survivorship, and not as tenants in common”).

c. A wants to convert his fee simple into a joint tenancy with B.

i. Common Law View
This could not be accomplished by conveying “from A to A and B” because the requirements of unity of time and unity of title would not be satisfied. Strawman transfers were the solution to this problem at common law. A transfers to X who then transfers to A and B jointly so that the unities of time and title are not broken.
ii. Modern statutes allow a property owner to create a joint tenancy in himself and another party without the use of a strawman.

Facts: Miss Lundeen, on behalf of Maureen and Michael Cordner, sued Metropolitan Life Insurance to recover on a life insurance policy held by Lundeen’s ex-husband, Joseph Cordner, which named Maureen and Michael as beneficiaries. Joseph’s second wife, France Cordner, intervened on behalf of her and her child. France introduced evidence that Joseph had completed all the necessary paperwork designating France and her child as the new beneficiaries, and then moved for summary judgment on the grounds that Lundeen had not introduced any controverting evidence. Lundeen contended that the evidence would emerge during cross-examination of an insurance agent.

Issue: Is summary judgment permissible when a party claims that cross-examination of a witness will preclude summary judgment?

Rule: Summary judgment is appropriate when all evidence indicates that no issue of material fact exists between the parties, even if the opposing party contends that cross-examination is essential but fails to show how the testimony would be impeached or how additional testimony will be adduced.

Facts: Wetzel and others alleged that Liberty Mutual’s employee insurance benefits and maternity leave regulations discriminated against women in violation of Title VII of the Civil Rights Act of 1964. The district court granted partial summary judgment for Wetzel solely on the issue of liability, without considering the issue of relief. Liberty Mutual appealed under 28 U.S.C. Section: 1291.

Issue 1: May an order for partial summary judgment limited to the issue of liability alone be appealed under 28 U.S.C. Section: 1291?

Rule 1: (Rehnquist, J.) A partial summary judgment order solely on the issue of liability is not a “final decision” as required by 28 U.S.C. Section: 1291.

Issue 2: May an order for partial summary judgment limited to the issue of liability be appealed under 28 U.S.C. Section: 1292(a)(l)?

Rule 2: Interlocutory appeals under 28 U.S.C. Section: 1292(a)(l) are limited to review of injunctive relief. Where, as here, no injunctive relief has been granted, a party may not appeal a district court’s order under this section.