1L Exam Prep and Motivation Thread

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Fri Nov 25, 2011 9:31 pm

Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:Looking for some help on assumption of risk

Apparently some states don't have assumption of risk, but that doesn't make sense to me. If a state didn't have assumption of risk, couldn't a boxer sue his opponent if he gets hurt? How would a state without assumption of risk treat that case?

Thanks.


They don't have assumption of risk probably because they have comparative fault regimes. Assumption of risk is pretty much folded into comparative fault but isn't held as a complete bar to recover for a plaintiff under such a system.

In the boxing hypo, assuming they follow the rules of boxing, there is no negligence there. So don't even have to get into assumption of risk. Plus there may be some Ks stuff with a waiver of liability or something, not sure since I have not taken Ks.


I see. Thank you. I guess the boxing hypo is more of a consent issue.

Assumption of risk is not always an affirmative defense, right? Can you still apply comparative fault in assumption or risk cases?



You scooped me with the consent issue, I think that's the correct answer. Well traditionally, assumption of the risk was a complete bar to recovery I think. So in a comparative fault jurisdiction, you would just reduce the award to the plaintiff by what you think he is at fault for assuming the risk, without calling it assuming the risk.

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Re: 1L Exam Prep and Motivation Thread

Postby gdane » Fri Nov 25, 2011 9:35 pm

introversional wrote:I think I'm prepared. Hit me with your most challenging 1L question.

Define strict liability.

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Re: 1L Exam Prep and Motivation Thread

Postby introversional » Fri Nov 25, 2011 9:36 pm

Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:Looking for some help on assumption of risk

Apparently some states don't have assumption of risk, but that doesn't make sense to me. If a state didn't have assumption of risk, couldn't a boxer sue his opponent if he gets hurt? How would a state without assumption of risk treat that case?

Thanks.


They don't have assumption of risk probably because they have comparative fault regimes. Assumption of risk is pretty much folded into comparative fault but isn't held as a complete bar to recover for a plaintiff under such a system.

In the boxing hypo, assuming they follow the rules of boxing, there is no negligence there. So don't even have to get into assumption of risk. Plus there may be some Ks stuff with a waiver of liability or something, not sure since I have not taken Ks.


I see. Thank you. I guess the boxing hypo is more of a consent issue.

Assumption of risk is not always an affirmative defense, right? Can you still apply comparative fault in assumption or risk cases?


I think you're confusing the two concepts... Assumption of risk requires knowingly subjecting yourself to danger. Comparative negligence involves how much the plaintiff may have contributed to the harm, but it wasn't an intentional decision. So if the P was 20% negligent in a jurisdiction that applies comparative neg, and the total damages were 100k, he'll likely only be able to recover 80k from the negligent D.

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Gettingstarted1928
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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Fri Nov 25, 2011 9:37 pm

ph14 wrote:
Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:Looking for some help on assumption of risk

Apparently some states don't have assumption of risk, but that doesn't make sense to me. If a state didn't have assumption of risk, couldn't a boxer sue his opponent if he gets hurt? How would a state without assumption of risk treat that case?

Thanks.


They don't have assumption of risk probably because they have comparative fault regimes. Assumption of risk is pretty much folded into comparative fault but isn't held as a complete bar to recover for a plaintiff under such a system.

In the boxing hypo, assuming they follow the rules of boxing, there is no negligence there. So don't even have to get into assumption of risk. Plus there may be some Ks stuff with a waiver of liability or something, not sure since I have not taken Ks.


I see. Thank you. I guess the boxing hypo is more of a consent issue.

Assumption of risk is not always an affirmative defense, right? Can you still apply comparative fault in assumption or risk cases?



You scooped me with the consent issue, I think that's the correct answer. Well traditionally, assumption of the risk was a complete bar to recovery I think. So in a comparative fault jurisdiction, you would just reduce the award to the plaintiff by what you think he is at fault for assuming the risk, without calling it assuming the risk.


I think I see what you're saying. Tell me if this is your understanding:

States with assumption of risk = affirmative defense
States without AOR = Comparative fault

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Re: 1L Exam Prep and Motivation Thread

Postby introversional » Fri Nov 25, 2011 9:39 pm

gdane wrote:
introversional wrote:I think I'm prepared. Hit me with your most challenging 1L question.

Define strict liability.


We didn't reach strict liability this sem... intentional torts, negligence and damages. That's it. I know, sort of limited material. They're going to lay it on thick in Torts II.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Fri Nov 25, 2011 9:40 pm

Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:
ph14 wrote:
They don't have assumption of risk probably because they have comparative fault regimes. Assumption of risk is pretty much folded into comparative fault but isn't held as a complete bar to recover for a plaintiff under such a system.

In the boxing hypo, assuming they follow the rules of boxing, there is no negligence there. So don't even have to get into assumption of risk. Plus there may be some Ks stuff with a waiver of liability or something, not sure since I have not taken Ks.


I see. Thank you. I guess the boxing hypo is more of a consent issue.

Assumption of risk is not always an affirmative defense, right? Can you still apply comparative fault in assumption or risk cases?



You scooped me with the consent issue, I think that's the correct answer. Well traditionally, assumption of the risk was a complete bar to recovery I think. So in a comparative fault jurisdiction, you would just reduce the award to the plaintiff by what you think he is at fault for assuming the risk, without calling it assuming the risk.


I think I see what you're saying. Tell me if this is your understanding:

States with assumption of risk = affirmative defense
States without AOR = Comparative fault


I think so, but just to be more precise i'd state it like this:
States with assumption of risk = affirmative defense which completely bars recovery (since not all affirmative defenses completely bar recovery)

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Fri Nov 25, 2011 9:40 pm

introversional wrote:
gdane wrote:
introversional wrote:I think I'm prepared. Hit me with your most challenging 1L question.

Define strict liability.


We didn't reach strict liability this sem... intentional torts, negligence and damages. That's it. I know, sort of limited material. They're going to lay it on thick in Torts II.


Explain Joint, Several, and Joint & Several, and state when you use each.

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Gettingstarted1928
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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Fri Nov 25, 2011 9:42 pm

introversional wrote:
Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:Looking for some help on assumption of risk

Apparently some states don't have assumption of risk, but that doesn't make sense to me. If a state didn't have assumption of risk, couldn't a boxer sue his opponent if he gets hurt? How would a state without assumption of risk treat that case?

Thanks.


They don't have assumption of risk probably because they have comparative fault regimes. Assumption of risk is pretty much folded into comparative fault but isn't held as a complete bar to recover for a plaintiff under such a system.

In the boxing hypo, assuming they follow the rules of boxing, there is no negligence there. So don't even have to get into assumption of risk. Plus there may be some Ks stuff with a waiver of liability or something, not sure since I have not taken Ks.


I see. Thank you. I guess the boxing hypo is more of a consent issue.

Assumption of risk is not always an affirmative defense, right? Can you still apply comparative fault in assumption or risk cases?


I think you're confusing the two concepts... Assumption of risk requires knowingly subjecting yourself to danger. Comparative negligence involves how much the plaintiff may have contributed to the harm, but it wasn't an intentional decision. So if the P was 20% negligent in a jurisdiction that applies comparative neg, and the total damages were 100k, he'll likely only be able to recover 80k from the negligent D.


I thought they were somewhat related. Hypo: I decide to go skiing down a black diamond as a first time skier. I know this is completely out above my experience level, but I choose to anyway. The hill, however, has been negligently maintained, and I get hurt. In this scenario, it seems like the court would apply assumption of risk and comparative fault.

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Re: 1L Exam Prep and Motivation Thread

Postby introversional » Fri Nov 25, 2011 9:46 pm

ph14 wrote:
introversional wrote:
gdane wrote:
introversional wrote:I think I'm prepared. Hit me with your most challenging 1L question.

Define strict liability.


We didn't reach strict liability this sem... intentional torts, negligence and damages. That's it. I know, sort of limited material. They're going to lay it on thick in Torts II.


Explain Joint, Several, and Joint & Several, and state when you use each.


Well Joint and Several liability means each negligent actor (assuming 2+) can be held liable for the entire amount of damages to P.

Several or "proportionate liability" means each D will only be liable for their percentage of liability.

Joint... need to review this one.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Fri Nov 25, 2011 9:50 pm

introversional wrote:
ph14 wrote:
introversional wrote:
gdane wrote:Define strict liability.


We didn't reach strict liability this sem... intentional torts, negligence and damages. That's it. I know, sort of limited material. They're going to lay it on thick in Torts II.


Explain Joint, Several, and Joint & Several, and state when you use each.


Well Joint and Several liability means each negligent actor (assuming 2+) can be held liable for the entire amount of damages to P.

Several or "proportionate liability" means each D will only be liable for their percentage of liability.

Joint... need to review this one.


Lol, well you answered the easy part of the question not the part I needed help with :P. I wikipedia'd it and what I got basically was that in joint you have to sue all the D's at once? whereas in J&S you can sue them individually and collect the entire judgment from one. But my biggest question is when. I think J&S for joint tortfeasors, several when damages are based percentage of the market. Not sure other than that though.

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Re: 1L Exam Prep and Motivation Thread

Postby introversional » Fri Nov 25, 2011 9:53 pm

I think there would be a causation question here.... but for the hill being negligently maintained, you would not have gotten hurt. Is this true? The court would have to decide... because if you would have wiped out regardless of the condition of the hill, your case would be exponentially weaker due to assumption of risk.

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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Fri Nov 25, 2011 9:55 pm

introversional wrote:I think there would be a causation question here.... but for the hill being negligently maintained, you would not have gotten hurt. Is this true? The court would have to decide... because if you would have wiped out regardless of the condition of the hill, your case would be exponentially weaker due to assumption of risk.


Basically, there are two but for elements that caused my injury - my inexperience and the poor maintenance of the hill. Get rid of one and there would not have been an injury.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Fri Nov 25, 2011 10:05 pm

Gettingstarted1928 wrote:
introversional wrote:
Gettingstarted1928 wrote:
ph14 wrote:
They don't have assumption of risk probably because they have comparative fault regimes. Assumption of risk is pretty much folded into comparative fault but isn't held as a complete bar to recover for a plaintiff under such a system.

In the boxing hypo, assuming they follow the rules of boxing, there is no negligence there. So don't even have to get into assumption of risk. Plus there may be some Ks stuff with a waiver of liability or something, not sure since I have not taken Ks.


I see. Thank you. I guess the boxing hypo is more of a consent issue.

Assumption of risk is not always an affirmative defense, right? Can you still apply comparative fault in assumption or risk cases?


I think you're confusing the two concepts... Assumption of risk requires knowingly subjecting yourself to danger. Comparative negligence involves how much the plaintiff may have contributed to the harm, but it wasn't an intentional decision. So if the P was 20% negligent in a jurisdiction that applies comparative neg, and the total damages were 100k, he'll likely only be able to recover 80k from the negligent D.


I thought they were somewhat related. Hypo: I decide to go skiing down a black diamond as a first time skier. I know this is completely out above my experience level, but I choose to anyway. The hill, however, has been negligently maintained, and I get hurt. In this scenario, it seems like the court would apply assumption of risk and comparative fault.


This hypo has a few forks in it that can be discussed. In a contributory fault jurisdiction, they would have to look at assumption of risk. Assumption of risk requires that the person be pretty aware of the specific dangers that they are undertaking. So the skiier may not be aware of exactly how dangerous a black diamond was-- it's not like you can see the danger until you are already there. On the other hand, he could've taken the ski lift back down most likely, so he could definitely have assumed the risk. As far as the negligently maintained slopes, there is also Secondary assumption of risk, where a plaintiff encounters a negligently created hazard but assumed the risk anyways. If he does so reasonably, it is secondary reasonable assumption of risk, and the plaintiff can still recover. There's also secondary unreasonable assumption, where the choice to encounter the risk created by the negligence was a negligent one in itself, and the plaintiff still would be barred. It's unclear whether you secondary assumed the risk, since by the time you encounter the negligence you may not have a real choice to assume the risk.

Further, there is also an issue of express assumption-- a lot of time the lift tickets have assumption of the risk clauses that you consent to when you buy the tickets. If there is there, you may be barred from recovery. Additionally, there is the issue though of whether the writing on the ticket was big enough, specific enough, etc. to be a valid express assumption.

But in a comparative fault jurisdiction, it may be different. See E&E Ch. 24 "The Once and Future Defense: Assumption of the Risk" page 543-44. Says that a secondary reasonable plaintiff may not recover at all since they have consented to take the risk. But secondary unreasonable may recover a reduced amount under comparative negligence. But we didn't learn this in my class so I can't really speak to it.
Last edited by ph14 on Fri Nov 25, 2011 10:06 pm, edited 1 time in total.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Fri Nov 25, 2011 10:06 pm

Gettingstarted1928 wrote:
introversional wrote:I think there would be a causation question here.... but for the hill being negligently maintained, you would not have gotten hurt. Is this true? The court would have to decide... because if you would have wiped out regardless of the condition of the hill, your case would be exponentially weaker due to assumption of risk.


Basically, there are two but for elements that caused my injury - my inexperience and the poor maintenance of the hill. Get rid of one and there would not have been an injury.


Don't think it's a causation issue. Causation seems to be met, the negligently maintained slope injured you. But then you need to take into account contributory/comparative negligence and assumption of risk.

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Re: 1L Exam Prep and Motivation Thread

Postby introversional » Fri Nov 25, 2011 10:08 pm

Gettingstarted1928 wrote:
introversional wrote:I think there would be a causation question here.... but for the hill being negligently maintained, you would not have gotten hurt. Is this true? The court would have to decide... because if you would have wiped out regardless of the condition of the hill, your case would be exponentially weaker due to assumption of risk.


Basically, there are two but for elements that caused my injury - my inexperience and the poor maintenance of the hill. Get rid of one and there would not have been an injury.


On an exam (when discussing the P's side) I'd probably go into how skiing is inherently dangerous, and even professionals second guess themselves before hitting the slopes. While you may have assumed some risk by attempting to ski this particular hill, you did so with the assumption that the hill was properly maintained. It can not be conclusively determined that you would have suffered the same injury were it not for the negligently maintained hill. Certainly, you were owed a duty by the ski resort - namely, that they properly maintain all hills. After discussing the D's predictable argument to this, I'd conclude with saying the court would likely reduce the total damage award by a small percentage due to the assumption of some risk, but definitely less than 50%. (I'd guess 10-20%)

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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Fri Nov 25, 2011 10:12 pm

introversional wrote:
Gettingstarted1928 wrote:
introversional wrote:I think there would be a causation question here.... but for the hill being negligently maintained, you would not have gotten hurt. Is this true? The court would have to decide... because if you would have wiped out regardless of the condition of the hill, your case would be exponentially weaker due to assumption of risk.


Basically, there are two but for elements that caused my injury - my inexperience and the poor maintenance of the hill. Get rid of one and there would not have been an injury.


On an exam (when discussing the P's side) I'd probably go into how skiing is inherently dangerous, and even professionals second guess themselves before hitting the slopes. While you may have assumed some risk by attempting to ski this particular hill, you did so with the assumption that the hill was properly maintained. It can not be conclusively determined that you would have suffered the same injury were it not for the negligently maintained hill. Certainly, you were owed a duty by the ski resort - namely, that they properly maintain all hills. After discussing the D's predictable argument to this, I'd conclude with saying the court would likely reduce the total damage award by a small percentage due to the assumption of some risk, but definitely less than 50%. (I'd guess 10-20%)


This is along the lines I was thinking.

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Re: 1L Exam Prep and Motivation Thread

Postby dabomb75 » Fri Nov 25, 2011 10:14 pm

introversional wrote:
gdane wrote:
introversional wrote:I think I'm prepared. Hit me with your most challenging 1L question.

Define strict liability.


We didn't reach strict liability this sem... intentional torts, negligence and damages. That's it. I know, sort of limited material. They're going to lay it on thick in Torts II.


2 semesters of torts sounds like my worst nightmare

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Re: 1L Exam Prep and Motivation Thread

Postby introversional » Fri Nov 25, 2011 10:16 pm

dabomb75 wrote:
2 semesters of torts sounds like my worst nightmare


IIED - mos def.

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Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Fri Nov 25, 2011 10:20 pm

introversional wrote:
Gettingstarted1928 wrote:
introversional wrote:I think there would be a causation question here.... but for the hill being negligently maintained, you would not have gotten hurt. Is this true? The court would have to decide... because if you would have wiped out regardless of the condition of the hill, your case would be exponentially weaker due to assumption of risk.


Basically, there are two but for elements that caused my injury - my inexperience and the poor maintenance of the hill. Get rid of one and there would not have been an injury.


On an exam (when discussing the P's side) I'd probably go into how skiing is inherently dangerous, and even professionals second guess themselves before hitting the slopes. While you may have assumed some risk by attempting to ski this particular hill, you did so with the assumption that the hill was properly maintained. It can not be conclusively determined that you would have suffered the same injury were it not for the negligently maintained hill. Certainly, you were owed a duty by the ski resort - namely, that they properly maintain all hills. After discussing the D's predictable argument to this, I'd conclude with saying the court would likely reduce the total damage award by a small percentage due to the assumption of some risk, but definitely less than 50%. (I'd guess 10-20%)

I am going to blow your mind with this case- Dalury v SKI LTD
Public policy dictates that in popular activities (such as in skiing, whereas in sky diving this wasnt the case according to my prof/case precedence) the importance of providing safety can override exculpatory clauses/assumption of risk

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Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Fri Nov 25, 2011 10:21 pm

introversional wrote:I think I'm prepared. Hit me with your most challenging 1L question.

How do you avoid terrible back/neck pain and a hunch back while studying for finals?

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Re: 1L Exam Prep and Motivation Thread

Postby TheFutureLawyer » Fri Nov 25, 2011 10:21 pm

dabomb75 wrote:
introversional wrote:
gdane wrote:
introversional wrote:I think I'm prepared. Hit me with your most challenging 1L question.

Define strict liability.


We didn't reach strict liability this sem... intentional torts, negligence and damages. That's it. I know, sort of limited material. They're going to lay it on thick in Torts II.


2 semesters of torts K and Civ Pro sounds like my worst nightmare


fix'd for me

oh, also, "There is no distinction between contributory negligence and assumption of the risk when raised as a defense to an established breach of duty." Assumed risk is now merged into the comparative negligence system. - Betts v Crawford
Last edited by TheFutureLawyer on Fri Nov 25, 2011 10:24 pm, edited 1 time in total.

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Re: 1L Exam Prep and Motivation Thread

Postby introversional » Fri Nov 25, 2011 10:23 pm

ilovesf wrote:I am going to blow your mind with this case- Dalury v SKI LTD
Public policy dictates that in popular activities (such as in skiing, whereas in sky diving this wasnt the case according to my prof/case precedence) the importance of providing safety can override exculpatory clauses/assumption of risk


Word.

Per Lexis:

CASE SUMMARY
PROCEDURAL POSTURE: Plaintiffs, skier and his wife, appealed the decision of the Rutland Superior Court (Vermont), which granted summary judgment for defendant ski resort operators based on exculpatory agreements signed by the skier releasing the resort from all liability resulting from negligence.

OVERVIEW: While skiing at the resort's facilities, the skier sustained serious injuries when he collided with a metal pole that formed part of the control maze for a ski lift line. The skier signed a form releasing the resort area from liability, which the resort required of all of its customers. The skier and his wife filed a complaint against the resort, alleging negligent design, construction, and replacement of the maze pole. The resort filed a motion for summary judgment on the grounds that the release of liability barred the negligence action. The trial court, without specifically addressing the skier's contention that the release was contrary to public policy, found that the language of the release clearly absolved the resort of liability for its own negligence. The court reversed and remanded the summary judgment, holding that the exculpatory clause was contrary to public policy. The court determined that regardless of whether a ski resort provided an essential public service, it was a facility open to the public, and a business owner owed a duty of active care to its customers to ensure that its premises were in a safe and suitable condition.

OUTCOME: The court reversed the trial court's grant of summary judgment for the resort, finding that the exculpatory agreements which the resort required all skiers, including the plaintiff, to sign, releasing the resort from all liability resulting from negligence, were void as contrary to public policy. The resort owed its customers a duty of active care to make sure its premises were in a safe and suitable condition.

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Re: 1L Exam Prep and Motivation Thread

Postby introversional » Fri Nov 25, 2011 10:26 pm

ilovesf wrote:
introversional wrote:I think I'm prepared. Hit me with your most challenging 1L question.

How do you avoid terrible back/neck pain and a hunch back while studying for finals?


I've been cycling through 5-6 different study positions... desk, bed, club chair, library, shower, etc. Oh wait, I haven't showered in days. Nevermind that one.

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Gettingstarted1928
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Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Fri Nov 25, 2011 10:28 pm

ilovesf wrote:
introversional wrote:
Gettingstarted1928 wrote:
introversional wrote:I think there would be a causation question here.... but for the hill being negligently maintained, you would not have gotten hurt. Is this true? The court would have to decide... because if you would have wiped out regardless of the condition of the hill, your case would be exponentially weaker due to assumption of risk.


Basically, there are two but for elements that caused my injury - my inexperience and the poor maintenance of the hill. Get rid of one and there would not have been an injury.


On an exam (when discussing the P's side) I'd probably go into how skiing is inherently dangerous, and even professionals second guess themselves before hitting the slopes. While you may have assumed some risk by attempting to ski this particular hill, you did so with the assumption that the hill was properly maintained. It can not be conclusively determined that you would have suffered the same injury were it not for the negligently maintained hill. Certainly, you were owed a duty by the ski resort - namely, that they properly maintain all hills. After discussing the D's predictable argument to this, I'd conclude with saying the court would likely reduce the total damage award by a small percentage due to the assumption of some risk, but definitely less than 50%. (I'd guess 10-20%)

I am going to blow your mind with this case- Dalury v SKI LTD
Public policy dictates that in popular activities (such as in skiing, whereas in sky diving this wasnt the case according to my prof/case precedence) the importance of providing safety can override exculpatory clauses/assumption of risk


http://www.youtube.com/watch?v=kNKz7nqTdvs ...... Start at 3:22

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Re: 1L Exam Prep and Motivation Thread

Postby FeelTheHeat » Sat Nov 26, 2011 1:32 pm

Does anyone have links to model exam responses (specifically torts or contracts ones)? This shit just isn't working. I have the BLL down cold but just CANNOT figure how to get it on paper...I can definitely identify the conflict pairings and have gotten better with the issue spotting, I just have a weird block with getting it down...ugh




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