AssumptionRequired wrote:noleknight16 wrote:splittermcsplit88 wrote:Okay, if D falls under the criminal statute, what would I write for "did he owe a duty?" How would I analyze...would I still talk about Cardozo and Andrews?
My tort teacher taught us to put the Andrews/Cardozo in the proximate cause argument. Depends on where you teacher wants it I guess. However, Palsgraf wasn't a statute violation so I doubt I'd even bring it up in this case even if your professor did want it there.
For breach, I would list out the three ways of establishing it: reasonable person standard, negligence per se, and res ipsa loquitur. Shoot down the ones dont apply quickly and then discuss the rule behind negligence per se. Apply fact to law with deep analysis. Then finally a brief open ended conclusion.
***Negligence per se establishes breach AND duty. You owe a duty by virtue of the statute being there
I dont think duty will be a big issue on most tests, usually you will either use the reasonable man standard or negligence per se (maybe res ipsa if necessary)
Here ismy question. When people talk about "deep" analysis I dont know if I am sure of what they mean.... Anyone have a question where they think they hit the ultimate level of analysis they would want to post?
The real hitch on duty tends to be nonfeasance and premise liability standards of care (invitee, licensee, trespasser). If you see a failure to act/protect/warn or somebody getting injured by the property itself, look at for either of those two.
Deep analysis depends on the professor. For example, my torts professor wanted the back and forth analysis (ping pong). Some want it organized by paragraph rather than going back and forth. For example (ping pong), when you get into the analysis portion of issue "A would bring up the affirmative defense of implied consent to the battery claim brought by B for the backyard boxing match. After all, B didn't have to show up unless he wanted to. However B would likely bring up the fact that he consented to a boxing style form of contact by showing up, but not an actual MMA style fight it turned into. B would argue that the MMA style fighting led to his injuries and had it been a boxing match as they agreed to, the injury would have never occurred. A would likely counter this analysis by pointing out the fact B never said anything against the MMA style fight and continued fighting, therefore continuing consent. [Brief conclusion]
Idk if that's helpful but that's how my torts professor wanted it and that's how I did the analysis.