1L Exam Prep and Motivation Thread

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alicrimson
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Re: 1L Exam Prep and Motivation Thread

Postby alicrimson » Thu Nov 24, 2011 1:09 am

ph14 wrote:
Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:So then maybe you can answer a quick question for me. When determining duty, does B v. PL pretty much only apply to cases that are business related? If yes, do we automatically then look if the harm was foreseeable to determine duty?

For example, if I was mowing my lawn w/o a blade guard and a child was blinded when he got hit by debris that hit the blade, couldn't B v. PL technically apply?

B = Burden for me to go to hardware store and buy a guard.
P = Probability of person getting getting hit by debris
L = Extent of injury (i.e., blindness)

OR would you simply assess whether the incident was foreseeable.


B<PL is used to determine the reasonable standard of care (ie, the "breach" element of negligence). It is a persuasive but not dispositive guide to determining whether a person behaved reasonably. It does not just apply to business related cases, but has been applied in a wide variety of negligence cases.

Duty is a bit more complicated and fact specific. You have a duty to behave reasonably when you act. Here you could use B<PL I suppose, but this seems like a situation where you could almost apply a negligent per se type standard to it (although to be clear, there is probably no law or regulation governing operating lawnmowers so probably not negligence per se). If you don't operate the machinery properly-- as the manufacturer suggests-- then you are pretty much not exercising reasonable care.


It seems like there are three ways to show breach (this is assuming it is a general negligence case that doesn't involve possessors of land, negligence per se, etc.).

1. B v. PL
2. Rick/utility (similar to B v. PL)
3. Foreseeability

Is this right?


Well, B<PL is the big one. Reasonableness is often times a question of fact for the jury, and it's hard to express it in a mathematical formula (although Judge Hand certainly tried). There are lots of little things that go into the calculus, such as physical standard, mental standard, context, dangerous instrumentality?, etc. Foreseeability goes more to duty or proximate cause.


Especially if you fall on the foreseeable plaintiff, foreseeable consequences side of the Palsgraf fence. :D I've gathered that pretty much anytime there's a super contested breach issue, the jury will be deliberating the reasonableness of D's actions.

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alicrimson
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Re: 1L Exam Prep and Motivation Thread

Postby alicrimson » Thu Nov 24, 2011 1:12 am

How so? I thought negligence per se was a stand-in for the standard of care and that if you didn't meet the standard of care that is a breach? Oh torts, thorn in my side. lol.

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Gettingstarted1928
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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Thu Nov 24, 2011 1:16 am

alicrimson wrote:How so? I thought negligence per se was a stand-in for the standard of care and that if you didn't meet the standard of care that is a breach? Oh torts, thorn in my side. lol.


There's so much overlap. I don't know what to think.

So when determining breach, is the only thing you assess is whether D failed to act reasonably? Is it that simple. Again, this is assuming neg. per se, possessors of land, etc. do not apply.

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Thu Nov 24, 2011 1:19 am

alicrimson wrote:How so? I thought negligence per se was a stand-in for the standard of care and that if you didn't meet the standard of care that is a breach? Oh torts, thorn in my side. lol.


Well, I suppose it depends on how you conceptualize it. Negligence per se does stand in for the standard of care. So when you are violating that standard, you are breaching. Although you could definitely conceptualize it as you have a duty to obey the laws and not be negligent per se.

But the way I understand it, is that negligence per se can help prove breach, not duty. For example, if you violate the statute, there is no legal battle whether you acted reasonably-- you per se acted unreasonably and the breach element is met. But the duty element is still not met. You could have violated the statute but still not be found negligent because of no duty (no special relationship, no action, etc.).

I hope that made sense, I'm tired lol.
Last edited by ph14 on Thu Nov 24, 2011 1:21 am, edited 1 time in total.

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Gettingstarted1928
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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Thu Nov 24, 2011 1:19 am

ph14 wrote:
Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:So then maybe you can answer a quick question for me. When determining duty, does B v. PL pretty much only apply to cases that are business related? If yes, do we automatically then look if the harm was foreseeable to determine duty?

For example, if I was mowing my lawn w/o a blade guard and a child was blinded when he got hit by debris that hit the blade, couldn't B v. PL technically apply?

B = Burden for me to go to hardware store and buy a guard.
P = Probability of person getting getting hit by debris
L = Extent of injury (i.e., blindness)

OR would you simply assess whether the incident was foreseeable.


B<PL is used to determine the reasonable standard of care (ie, the "breach" element of negligence). It is a persuasive but not dispositive guide to determining whether a person behaved reasonably. It does not just apply to business related cases, but has been applied in a wide variety of negligence cases.

Duty is a bit more complicated and fact specific. You have a duty to behave reasonably when you act. Here you could use B<PL I suppose, but this seems like a situation where you could almost apply a negligent per se type standard to it (although to be clear, there is probably no law or regulation governing operating lawnmowers so probably not negligence per se). If you don't operate the machinery properly-- as the manufacturer suggests-- then you are pretty much not exercising reasonable care.


It seems like there are three ways to show breach (this is assuming it is a general negligence case that doesn't involve possessors of land, negligence per se, etc.).

1. B v. PL
2. Rick/utility (similar to B v. PL)
3. Foreseeability

Is this right?


Well, B<PL is the big one. Reasonableness is often times a question of fact for the jury, and it's hard to express it in a mathematical formula (although Judge Hand certainly tried). There are lots of little things that go into the calculus, such as physical standard, mental standard, context, dangerous instrumentality?, etc. Foreseeability goes more to duty or proximate cause.


Doesn't this fall under duty?

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istara
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Re: 1L Exam Prep and Motivation Thread

Postby istara » Thu Nov 24, 2011 1:22 am

From my outline (your professor may vary):
Specific Tests:
1. Failure to use reasonable care
2. BPL
3. Notice of Risk
4. Policies of a private company
5. Custom or Statute

#1 is just a standard definition. BPL is discussed above (my Prof. uses BPL and risk-utility interchangeably). Notice of the risk can be evidence of breach (has this kind of accident happened before?). Violation of private company policies can be evidence, going against customs may be evidence, and violating statues can be evidence and/or be used to establish Negligence Per Se.

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Thu Nov 24, 2011 1:23 am

Gettingstarted1928 wrote:
alicrimson wrote:How so? I thought negligence per se was a stand-in for the standard of care and that if you didn't meet the standard of care that is a breach? Oh torts, thorn in my side. lol.


There's so much overlap. I don't know what to think.

So when determining breach, is the only thing you assess is whether D failed to act reasonably? Is it that simple. Again, this is assuming neg. per se, possessors of land, etc. do not apply.


Well, that's the ultimate question. Breach = violating the standard of care. The standard of care is acting reasonably in most garden variety negligent cases (lots of exceptions and nuances to this point though). B<PL can help in determining whether you acting reasonably or not, ie, whether you violated the standard of due care.

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Gettingstarted1928
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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Thu Nov 24, 2011 1:25 am

istara wrote:From my outline (your professor may vary):
Specific Tests:
1. Failure to use reasonable care
2. BPL
3. Notice of Risk
4. Policies of a private company
5. Custom or Statute

#1 is just a standard definition. BPL is discussed above (my Prof. uses BPL and risk-utility interchangeably). Notice of the risk can be evidence of breach (has this kind of accident happened before?). Violation of private company policies can be evidence, going against customs may be evidence, and violating statues can be evidence and/or be used to establish Negligence Per Se.


This is basically what I got, but #1 seems entirely subjective.

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istara
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Re: 1L Exam Prep and Motivation Thread

Postby istara » Thu Nov 24, 2011 1:25 am

Gettingstarted1928 wrote:Doesn't this fall under duty?


Reasonableness? Reasonableness is, or always should be, a question for the jury. Whether or not you have to be reasonable at all in a given situation/relationship is a question of duty (policy) for the judge.

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Thu Nov 24, 2011 1:26 am

istara wrote:
Gettingstarted1928 wrote:Doesn't this fall under duty?


Reasonableness? Reasonableness is, or always should be, a question for the jury. Whether or not you have to be reasonable at all in a given situation/relationship is a question of duty (policy) for the judge.


Reasonableness can also be decided by the judge as a matter of law. For example, being negligent per se is being unreasonable as a matter of law, no jury necessary.

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Extension_Cord
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Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Thu Nov 24, 2011 1:27 am

alicrimson wrote:How so? I thought negligence per se was a stand-in for the standard of care and that if you didn't meet the standard of care that is a breach? Oh torts, thorn in my side. lol.


Negligence per se may be used by a court when there is a criminal or civil statute that imposes a standard of care that D falls short of and there is a common law standard of care. to determine its effect the courts will examine 1) whether P was in the particular class the statute was intended to protect, 2) whether P's injury were of the particular types the statute was meant to prevent, and 3) whether D had a valid excuse for breaching the statute's standard of care? If the answers are yes yes no then the court may use the statute to impose a civil duty and breach.

Some courts will find it was NPS, others PFN, and yet others as just evidence of a waton care.
Last edited by Extension_Cord on Thu Nov 24, 2011 1:43 am, edited 1 time in total.

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Thu Nov 24, 2011 1:27 am

Gettingstarted1928 wrote:
istara wrote:From my outline (your professor may vary):
Specific Tests:
1. Failure to use reasonable care
2. BPL
3. Notice of Risk
4. Policies of a private company
5. Custom or Statute

#1 is just a standard definition. BPL is discussed above (my Prof. uses BPL and risk-utility interchangeably). Notice of the risk can be evidence of breach (has this kind of accident happened before?). Violation of private company policies can be evidence, going against customs may be evidence, and violating statues can be evidence and/or be used to establish Negligence Per Se.


This is basically what I got, but #1 seems entirely subjective.


It's very largely subjective.

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Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Thu Nov 24, 2011 1:30 am

ph14 wrote:
alicrimson wrote:How so? I thought negligence per se was a stand-in for the standard of care and that if you didn't meet the standard of care that is a breach? Oh torts, thorn in my side. lol.


Well, I suppose it depends on how you conceptualize it. Negligence per se does stand in for the standard of care. So when you are violating that standard, you are breaching. Although you could definitely conceptualize it as you have a duty to obey the laws and not be negligent per se.

But the way I understand it, is that negligence per se can help prove breach, not duty. For example, if you violate the statute, there is no legal battle whether you acted reasonably-- you per se acted unreasonably and the breach element is met. But the duty element is still not met. You could have violated the statute but still not be found negligent because of no duty (no special relationship, no action, etc.).

I hope that made sense, I'm tired lol.


There can be a legal battle. You can act unreasonably in a criminal statute, but have an excuse in civil liability. Also, many jurisdicitions dont follow NPS, rather they will follow a rebuttable presumption of negligence (prima facie) or just treat the criminal breach as evidence. Also, there can be statute that imposes a duty of care that doesn't exist in common law.

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Re: 1L Exam Prep and Motivation Thread

Postby istara » Thu Nov 24, 2011 1:32 am

Extension_Cord wrote: criminal statute


Just because this is a pet peeve of my Prof: It should be any statute that does not otherwise provide an alternative civil cause of action (civil or criminal).

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Thu Nov 24, 2011 1:33 am

Extension_Cord wrote:
ph14 wrote:
alicrimson wrote:How so? I thought negligence per se was a stand-in for the standard of care and that if you didn't meet the standard of care that is a breach? Oh torts, thorn in my side. lol.


Well, I suppose it depends on how you conceptualize it. Negligence per se does stand in for the standard of care. So when you are violating that standard, you are breaching. Although you could definitely conceptualize it as you have a duty to obey the laws and not be negligent per se.

But the way I understand it, is that negligence per se can help prove breach, not duty. For example, if you violate the statute, there is no legal battle whether you acted reasonably-- you per se acted unreasonably and the breach element is met. But the duty element is still not met. You could have violated the statute but still not be found negligent because of no duty (no special relationship, no action, etc.).

I hope that made sense, I'm tired lol.


There can be a legal battle. You can act unreasonably in a criminal statute, but have an excuse in civil liability. Also, many jurisdicitions dont follow NPS, rather they will follow a rebuttable presumption of negligence (prima facie) or just treat the criminal breach as evidence. Also, there can be statute that imposes a duty of care that doesn't exist in common law.


Interesting. We didn't go over that in my class, my professor basically explained that if you violated the statute the breach element is met.

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alicrimson
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Re: 1L Exam Prep and Motivation Thread

Postby alicrimson » Thu Nov 24, 2011 1:40 am

ph14 wrote:
Extension_Cord wrote:
ph14 wrote:
alicrimson wrote:How so? I thought negligence per se was a stand-in for the standard of care and that if you didn't meet the standard of care that is a breach? Oh torts, thorn in my side. lol.


Well, I suppose it depends on how you conceptualize it. Negligence per se does stand in for the standard of care. So when you are violating that standard, you are breaching. Although you could definitely conceptualize it as you have a duty to obey the laws and not be negligent per se.

But the way I understand it, is that negligence per se can help prove breach, not duty. For example, if you violate the statute, there is no legal battle whether you acted reasonably-- you per se acted unreasonably and the breach element is met. But the duty element is still not met. You could have violated the statute but still not be found negligent because of no duty (no special relationship, no action, etc.).

I hope that made sense, I'm tired lol.


There can be a legal battle. You can act unreasonably in a criminal statute, but have an excuse in civil liability. Also, many jurisdicitions dont follow NPS, rather they will follow a rebuttable presumption of negligence (prima facie) or just treat the criminal breach as evidence. Also, there can be statute that imposes a duty of care that doesn't exist in common law.


Interesting. We didn't go over that in my class, my professor basically explained that if you violated the statute the breach element is met.


I think this sort of runs together. It almost appears that if there is NPS and you violate the statutory duty, there's also a resulting breach. (of course, as extension cord pointed out the four prongs of NPS must be met)

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Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Thu Nov 24, 2011 1:41 am

istara wrote:
Extension_Cord wrote: criminal statute


Just because this is a pet peeve of my Prof: It should be any statute that does not otherwise provide an alternative civil cause of action (civil or criminal).


Like county ordinances and administrative regulations? I didn't know that thanks!

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Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Thu Nov 24, 2011 1:49 am

alicrimson wrote:I think this sort of runs together. It almost appears that if there is NPS and you violate the statutory duty, there's also a resulting breach. (of course, as extension cord pointed out the four prongs of NPS must be met)


We don't know if its NPS until we know how the particular jurisdiction treates a statutory breach, they differ. If your professor only covered NPS, then just assume its NPS. If there is NPS then there was a breach of a the standard of care in torts. NPS solves the first two elements of negligence, duty and breach if these are knocked out you move onto causation. If they aren't you should look for the RPP breach.

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Re: 1L Exam Prep and Motivation Thread

Postby alicrimson » Thu Nov 24, 2011 1:55 am

Extension_Cord wrote:
alicrimson wrote:I think this sort of runs together. It almost appears that if there is NPS and you violate the statutory duty, there's also a resulting breach. (of course, as extension cord pointed out the four prongs of NPS must be met)


We don't know if its NPS until we know how the particular jurisdiction treates a statutory breach, they differ. If your professor only covered NPS, then just assume its NPS. If there is NPS then there was a breach of a the standard of care in torts. NPS solves the first two elements of negligence, duty and breach if these are knocked out you move onto causation. If they aren't you should look for the RPP breach.


Yeah. That's what we covered. The RPP standard was what we were just talking about. Someone asked if NPS fit into duty or breach and that's how this topic came up. I thought it went in one analysis category and someone else thought it went into the other.

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Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Thu Nov 24, 2011 2:04 am

alicrimson wrote:
Extension_Cord wrote:
alicrimson wrote:I think this sort of runs together. It almost appears that if there is NPS and you violate the statutory duty, there's also a resulting breach. (of course, as extension cord pointed out the four prongs of NPS must be met)


We don't know if its NPS until we know how the particular jurisdiction treates a statutory breach, they differ. If your professor only covered NPS, then just assume its NPS. If there is NPS then there was a breach of a the standard of care in torts. NPS solves the first two elements of negligence, duty and breach if these are knocked out you move onto causation. If they aren't you should look for the RPP breach.


Yeah. That's what we covered. The RPP standard was what we were just talking about. Someone asked if NPS fit into duty or breach and that's how this topic came up. I thought it went in one analysis category and someone else thought it went into the other.


Your both kind of right. NPS is more similar to a breach because there has to be a common law duty for a breach, but at the same time NPS speaks of both the duty and the breach together if that makes sense? I would say the statute itself was the breach and NPS is the effect that leads to causation.

I have a question, what is the difference between the RPP breach and the B<PLformula?

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Re: 1L Exam Prep and Motivation Thread

Postby dabomb75 » Thu Nov 24, 2011 1:16 pm

contracts just clicked for me yesterday. So excited. It really is a very step by step process in analyzing a contract which I definitely like.

Happy turkey day everyone

23402385985
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Re: 1L Exam Prep and Motivation Thread

Postby 23402385985 » Thu Nov 24, 2011 3:10 pm

I think I am pretty much set on Crim (I really know all the elements of what we are going to be tested on and most of the policy already just from class) and Torts (shitty multiple choice exam -- just studying the old quizzes which comprise about 2/3 of the exam -- along with Torts II, Insurance Law, and other things that we just have to guess on).

I need to be set on K's sooner rather than later, along with Civ Pro II (doing Rules this semester and Jurisdiction next semester).

My K's outline and Civ Pro outlines are both finished. First two exams, too (Civ Pro on the 5th, K's on the 8th).

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gdane
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Re: 1L Exam Prep and Motivation Thread

Postby gdane » Thu Nov 24, 2011 3:50 pm

Can people post their negligence attack plans please?

There's so much crap and I have a feeling I'm missing something.

Thanks. Happy thanksgiving.

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Gettingstarted1928
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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Thu Nov 24, 2011 3:54 pm

gdane wrote:Can people post their negligence attack plans please?

There's so much crap and I have a feeling I'm missing something.

Thanks. Happy thanksgiving.


+1

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Extension_Cord
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Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Thu Nov 24, 2011 4:01 pm

just be concious of the following things:
1. statute
2. custom
3. b<pl
4. actual cause
a. but-for
b. sub. factor
5. interveneing cause - superceding?
6. alternative causes
7. legal cause / proximate cause
8. eggshell p
9 concerted activity
10. market share
11 pecuniary
12. punitive
13. joint and several liability
14. cibtributory
15. comparative
a. pure
b. modified 49 and 50
16. assumption of the risk
a. implied
b. express




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