1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

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uvabro
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1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 12:56 pm

No formality - just stream of consciousness arguments for P's and D's - 15 minute time limits on the entires. Point out why other people's answers suck. We all get better.

I'll start with torts, and a juicy 1 i found.

Player P is a football quarterback at a division 3 powerhouse school. Stands are negligently built. His sweetheart is in the stands. Stands collapse and she is badly injured. P loses focus - resulting in a defensive end coming in and pummeling him. P, was a star, and would have been offered a transfer to start at Alabama if he didn't break his arm in the incident and now has his football career over.

Discuss P's claims against the stadium.

KEY ISSUES:

PROXIMATE CAUSE -

FORESEEABLE P
TYPE OF HARM/MANNER IN WHICH IT'S DEALT (ANDREWS' DISSENT FACTORS)
INTERVENING ACTOR

Assuming P proves negligence in the construction of the stand that led to his sweetheart's demise, he'll still need to prove causation. Presumably, he will not have an issue of but for causation - while every snap comes with some risk of being sacked, this is an instance of self proving causation in that P wouldn't have not been paying attention but for the negligent building of the stands.

D will come back and argue that there is not a proximate cause between the stands falling 100 feet or so from the field, and P being injured. They will point to the fact that P is not a foreseeable plaintiff, and quote Cardozo in Palsgraf stating that the builders had no duty to the players in the field as the stands breaking does not create a foreseeable risk that the players 100 feet away on the field will be hurt. D may also state that they are not responsible, because P's injury was not from the stands, but the intervening sack. Moreover, the breaking of an arm through a sack is not a natural and continuous consequence from the risk posed by negligently building stands.

P may counter on the issue of being a foreseeable plaintiff that they are in fact a reasonably foreseeable plaintiff and therefore were owed a duty of reasonable care from the builders. Firstly, this isn't the Washington Redskins - it isn't Notre Dame, and isn't even UCLA. This is a smaller division 2 school, and though they were a powerhouse, these games aren't very heavily populated by the media and general public, but only people with a deep interest in the school. Therefore, it is highly foreseeable that most of the attendants will be people from the school or associated with the school or friends and family of the players. Consequently, the likelihood that if there is an injury, a player will know the injured on a personal level is relatively high. P will argue that it isn't like Palsgraf, but more like another Cardozo ruling in Wagner in which it was foreseeable that "danger invites rescue", and therefore a risk dealt to someone isn't only an injustice to them, but anyone who comes to their aid. Therefore, P is a foreseeable P in that seeing their sweetheart injured will cause them to become distracted.

D may counter that Wagner is not really applicable, because P never came to his sweetheart's rescue, and just stood there in shock. Although depending on the size of the school, P's argument seems stronger, D will come back and voice that he is not liable because there was an intervening actor. As we saw in Brower, the general rule for intervening actors is that an actor is responsible for intervening actors who foreseeably pray on the risk created by the first actor's negligence. The old rule held that intentional harms dealt by intervening actors relieve D1's duty, but this rule was overturned in Brower, and cases like Bell in which D1's negligently leaving a girl behind led to her walking back alone and being raped and sodomized.

P will argue that this case is like the cases above, because the lineman was only praying off of the risk created by D1, and it was that risk that made him liable to getting so badly injured. D will counter by arguing this is a peculiar case because there are not 1, but 2 intervening actors - not only the lineman but P himself. Because P stopped paying attention and exercising reasonable care for himself, the second intervening actor, the lineman came in and hit him. P will argue that he only stopped exercising reasonable care, because of the risk that materialized from D1's negligence.

D will ultimately counter by stating that the rule requires D2 to pray on a risk created by D1's negligence. In the case at bar, because there is always a great risk of a player being hurt on a football field, and the lineman's goal is to deck the quarterback regardless of whether or not the quarterback is distracted, their conduct did not really raise the likelihood of D2's intervention so didn't create a greater risk. P will show this is a weak argument by stating that the lineman is no different from a force of nature that will cause damage regardless of the circumstance, and P's only option is to minimize that damage as best as possible. Like the actor who takes care to bundle up when there's great cold or stay indoors during a hurricane, D1's negligence permitted P from the opportunity to take reasonable care by paying attention to the field.

nucky thompson
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 1:24 pm

I dont have time to do my own response to this hypo but I feel like your analysis is lacking - 1L too so take that with a grain of salt.


First of all, I personally do not think P can recover for the actual harm suffered - broken arm. P is playing football. Getting sacked is an inherent risk of playing football (implied primary assumption of the risk). Losing concentration is an inherent risk of football. I do not think P will have a claim with regard to getting sacked. Further, it is presumptuous to assume "but for" causation with regard to getting sacked. But for the stands falling... can you really say he would not have gotten sacked? or broke his arm? - He could have ran and gotten that arm twisted or any number of other possibilities. Further, he could have gotten distracted by something else and been sacked in the same way. Very weak argument for recovery of damages regarding broken arm.

I think P's only claim here would by bystander negligent infliction of emotional distress (something you did not even mention in your response)

There are a few tests for this - Dillion - limits recovery to foreseeable P's - then the Thing test, which sought to limit recovery further than the Dillion test to avoid runaway litigation - Under Dillion, every single family member or loved one of a harmed victim would be able to sue for NIED - thing adds a few requirements

Thing v. La Chusa – zone of danger – way to limit the foreseeability test - A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person only if
(1) The plaintiff is closely related to the victim;
(2) The plaintiff is present at the scene at the time the injury occurs and is then aware of the injury being caused to the victim;
• In re Air Crash Disaster Near Cerritos - Some courts allow contemporaneous AWARENESS to satisfy the contemporaneous observance criteria
(3) As a result suffers serious emotional distress beyond which would be expected of a disinterested witness


P's sweetheart is the victim of the negligently built stands. Though, it is foreseeable that all people witnessing the stands collapse (not directly harmed by the negligently built stands) would suffer harm because that is a traumatic event, and it is likely that at the small school, the real victims are family/friends. P is definitely a foreseeable plaintiff, like all others witnessing the stands collapse, but that does not mean they can recover from the distress caused. P was present and aware his sweetheart was injured when stands collapsed. - facts are unclear as to wether he suffered emotional distress.


few other notes
-i recommend staying on topic. "danger invites rescue" - from what i remember - regards the rescue doctrine - 3rd party attempts to rescue the original victim of D's negligence --- how does that relate to D in this hypo? he does not try and rescue his sweetheart, so why talk about it? Obviously you're trying to make arguments and counter arguments but this is wayyyyyy to attenuated IMO

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nshapkar
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nshapkar » Mon Nov 26, 2012 1:34 pm

.

uvabro
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 1:37 pm

nucky thompson wrote:I dont have time to do my own response to this hypo but I feel like your analysis is lacking - 1L too so take that with a grain of salt.


First of all, I personally do not think P can recover for the actual harm suffered - broken arm. P is playing football. Getting sacked is an inherent risk of playing football (implied primary assumption of the risk). Losing concentration is an inherent risk of football. I do not think P will have a claim with regard to getting sacked. Further, it is presumptuous to assume "but for" causation with regard to getting sacked. But for the stands falling... can you really say he would not have gotten sacked? or broke his arm? - He could have ran and gotten that arm twisted or any number of other possibilities. Further, he could have gotten distracted by something else and been sacked in the same way. Very weak argument for recovery of damages regarding broken arm.

I think P's only claim here would by bystander negligent infliction of emotional distress (something you did not even mention in your response)

There are a few tests for this - Dillion - limits recovery to foreseeable P's - then the Thing test, which sought to limit recovery further than the Dillion test to avoid runaway litigation - Under Dillion, every single family member or loved one of a harmed victim would be able to sue for NIED - thing adds a few requirements

Thing v. La Chusa – zone of danger – way to limit the foreseeability test - A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person only if
(1) The plaintiff is closely related to the victim;
(2) The plaintiff is present at the scene at the time the injury occurs and is then aware of the injury being caused to the victim;
• In re Air Crash Disaster Near Cerritos - Some courts allow contemporaneous AWARENESS to satisfy the contemporaneous observance criteria
(3) As a result suffers serious emotional distress beyond which would be expected of a disinterested witness


P's sweetheart is the victim of the negligently built stands. Though, it is foreseeable that all people witnessing the stands collapse (not directly harmed by the negligently built stands) would suffer harm because that is a traumatic event, and it is likely that at the small school, the real victims are family/friends. P is definitely a foreseeable plaintiff, like all others witnessing the stands collapse, but that does not mean they can recover from the distress caused. P was present and aware his sweetheart was injured when stands collapsed. - facts are unclear as to wether he suffered emotional distress.


few other notes
-i recommend staying on topic. "danger invites rescue" - from what i remember - regards the rescue doctrine - 3rd party attempts to rescue the original victim of D's negligence --- how does that relate to D in this hypo? he does not try and rescue his sweetheart, so why talk about it? Obviously you're trying to make arguments and counter arguments but this is wayyyyyy to attenuated IMO

true - wagner was prob weak. but doesn't dillon rule only apply to negligent infliction of emotional distress?

or is your argument that by seeing it he was emotionally distressed leading to his inability to react?

also, for what it's worth on but for causation i didn't say but for to getting sacked - but for to losing concentration.
Last edited by uvabro on Mon Nov 26, 2012 1:45 pm, edited 1 time in total.

minnie7
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby minnie7 » Mon Nov 26, 2012 1:42 pm

Is there a "hypo bank" out there somewhere with answers and such?

uvabro
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 1:45 pm

minnie7 wrote:Is there a "hypo bank" out there somewhere with answers and such?

i wish.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 1:54 pm

But for the stands falling, P would not have been distracted.... What if he were not distracted, but broke his arm anyway? The but for test is a test to determine if the negligence was a legal cause of the resulting harm. the harm was a broken arm. you should not apply the but for test to losing concentration, because that is not the harm P suffered. It is a reason why P suffered the harm. Even if it were - but for the stands falling - P still could have lost his concentration. what if P lost concentration because he saw out of the corner of his eye a hot cheerleader bending over?


My 2nd response must not have posted.

I do not think P can recover for broken arm because broken limbs are an inherent risk of playing football - whether P is distracted by D's negligence or not.

Based on the facts, it is unclear as to whether P can recover for NIED either, but I simply think that his is best route to recovery. It is presumable that P has suffered distress. If your girl was in the stands, along with your family possible, and other friends etc etc. and you saw the stands collapse, would that cause some distress? likely it would. But again, if it did not cause distress, P could not recover for this claim either.

Good to mention very briefly a potential recovery for the broken arm, but quickly dismiss it because A) it does not clearly pass the but-for test and B) P voluntarily assumed the risk of a broken arm by deciding to play football - broken limbs are an inherent risk of playing football, therefore any recover for this claim would be fully barred.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby 005618502 » Mon Nov 26, 2012 2:00 pm

Shit, I actually dont have anything to add to your analysis, but this does help me to see how behind I am. damn

uvabro
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 2:01 pm

nucky thompson wrote:But for the stands falling, P would not have been distracted.... What if he were not distracted, but broke his arm anyway? The but for test is a test to determine if the negligence was a legal cause of the resulting harm. the harm was a broken arm. you should not apply the but for test to losing concentration, because that is not the harm P suffered. It is a reason why P suffered the harm. Even if it were - but for the stands falling - P still could have lost his concentration. what if P lost concentration because he saw out of the corner of his eye a hot cheerleader bending over?

that's a good point. i guess i'd point to the substantially enhanced risk exception of but for analysis. technically, u can use that argument for anything. like in reynolds where there were no lights by the staircase and the fat women fell, it's true fat people could always fall when walking stairs but no lights substantially increases the risk. Yes, he could have loses focus from the hot cheerleader, but it's substantially more likely to lose focus if u see ur girlfriend get serious bodily harm.

by that standard, how could but for analysis ever work. i lost my legs in a car accident. can't say it's but for. i could have lost them from a medical condition i may have developed then and there, or a bombing or maybe i would've done meth and decided to cut em off.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 2:03 pm

AssumptionRequired wrote:Shit, I actually dont have anything to add to your analysis, but this does help me to see how behind I am. damn

ur prob ahead of me. i'm just (with some mechanics needed and improvement needed) naturally good at applying what i know to new situations, and being resourceful. the issue is i don't know that much. i also tend to as i start writing like 1 side's argument more, and it cuts into my analysis.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 2:13 pm

uvabro wrote:
nucky thompson wrote:But for the stands falling, P would not have been distracted.... What if he were not distracted, but broke his arm anyway? The but for test is a test to determine if the negligence was a legal cause of the resulting harm. the harm was a broken arm. you should not apply the but for test to losing concentration, because that is not the harm P suffered. It is a reason why P suffered the harm. Even if it were - but for the stands falling - P still could have lost his concentration. what if P lost concentration because he saw out of the corner of his eye a hot cheerleader bending over?

that's a good point. i guess i'd point to the substantially enhanced risk exception of but for analysis. technically, u can use that argument for anything. like in reynolds where there were no lights by the staircase and the fat women fell, it's true fat people could always fall when walking stairs but no lights substantially increases the risk. Yes, he could have loses focus from the hot cheerleader, but it's substantially more likely to lose focus if u see ur girlfriend get serious bodily harm.

by that standard, how could but for analysis ever work. i lost my legs in a car accident. can't say it's but for. i could have lost them from a medical condition i may have developed then and there, or a bombing or maybe i would've done meth and decided to cut em off.



Does getting distracted substantially increase the risk a quarterback faces with regard to a broken arm? My point is that it could literally happen either way. Quarterbacks suffer broken arms in the natural course of a game allll the time. Your analogy with the car and losing legs is not analogous but i guess i see where your going.

if you use reasonable care driving a car, it is HIGHLY unlikely that one would lose their legs. but for the accident, the driver would have their legs.

If a quarterback uses reasonable care (not being distracted), the risk of suffering a broken bone is still high. True, the negligence increased the likelihood that he would be sacked (ie: quarterback cannot run away from a DE that he is not aware of), so you would probably want to say it is unlikely but-for would be passed, but if it is passed because the likelihood of the harm was substantially increased, there would still be the Implied Primary assumption of the risk defense. (along with proximate cause issues - if P could recover for this, what about when a official accidentally blows their whistle prior to a snap - this happens in football often, usually everyone hears the whistle and players stop the play. what if only the quarterback heard the whistle, caught the hiked ball, stopped playing because of the whistle, but the DE did not hear the whistle and sacked the QB thinking the play was live. - Can QB sue the official that accidentally blew his whistle? what if someone in the stands blew the whistle?

When people play football, broken limbs are a risk voluntarily assumed, and thus recovery would be barred.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 2:22 pm

nucky thompson wrote:
uvabro wrote:
nucky thompson wrote:But for the stands falling, P would not have been distracted.... What if he were not distracted, but broke his arm anyway? The but for test is a test to determine if the negligence was a legal cause of the resulting harm. the harm was a broken arm. you should not apply the but for test to losing concentration, because that is not the harm P suffered. It is a reason why P suffered the harm. Even if it were - but for the stands falling - P still could have lost his concentration. what if P lost concentration because he saw out of the corner of his eye a hot cheerleader bending over?

that's a good point. i guess i'd point to the substantially enhanced risk exception of but for analysis. technically, u can use that argument for anything. like in reynolds where there were no lights by the staircase and the fat women fell, it's true fat people could always fall when walking stairs but no lights substantially increases the risk. Yes, he could have loses focus from the hot cheerleader, but it's substantially more likely to lose focus if u see ur girlfriend get serious bodily harm.

by that standard, how could but for analysis ever work. i lost my legs in a car accident. can't say it's but for. i could have lost them from a medical condition i may have developed then and there, or a bombing or maybe i would've done meth and decided to cut em off.



Does getting distracted substantially increase the risk a quarterback faces with regard to a broken arm? My point is that it could literally happen either way. Quarterbacks suffer broken arms in the natural course of a game allll the time. Your analogy with the car and losing legs is not analogous but i guess i see where your going.

if you use reasonable care driving a car, it is HIGHLY unlikely that one would lose their legs. but for the accident, the driver would have their legs.

If a quarterback uses reasonable care (not being distracted), the risk of suffering a broken bone is still high. True, the negligence increased the likelihood that he would be sacked (ie: quarterback cannot run away from a DE that he is not aware of), so you would probably want to say it is unlikely but-for would be passed, but if it is passed because the likelihood of the harm was substantially increased, there would still be the Implied Primary assumption of the risk defense. (along with proximate cause issues - if P could recover for this, what about when a official accidentally blows their whistle prior to a snap - this happens in football often, usually everyone hears the whistle and players stop the play. what if only the quarterback heard the whistle, caught the hiked ball, stopped playing because of the whistle, but the DE did not hear the whistle and sacked the QB thinking the play was live. - Can QB sue the official that accidentally blew his whistle? what if someone in the stands blew the whistle?

When people play football, broken limbs are a risk voluntarily assumed, and thus recovery would be barred.

id argue if the referee was negligent with the whistle, the quarterback could sue the referee. he is reasonably relying on him to enforce the rules of the sport that partly serve to protect players. id look at custom like medical malpractice.

IDK if P is a primary assumption of risk - maybe secondary. The stadium has some duty. By this logic if the grass had quick sand, P fell and died, he can't recover. Seems mean, no?

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby Icculus » Mon Nov 26, 2012 2:27 pm

uvabro wrote:id argue if the referee was negligent with the whistle, the quarterback could sue the referee. he is reasonably relying on him to enforce the rules of the sport that partly serve to protect players.

IDK if P is a primary assumption of risk - maybe secondary. The stadium has some duty. By this logic if the grass had quick sand, P fell and died, he can't recover. Seems mean, no?


Okay, it has been a year since I've taken torts, and while I don't have time to go into your hypothetical in detail, the bolded is just wrong. Also, to your quick sand analogy, does the P know there is quicksand? If so then he has assumed the risk, if no then there would be a claim. The key is knowledge. The QB in this situation knows the risks associated with football and assumes them.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 2:29 pm

LOL - is playing on quicksand, falling and dying, an inherent risk of Football? what about getting tackled and breaking your arm? -- which harm is inherent to the game of football?

by using reasonable care, the football field would not be quicksand, therefore it would not be implied primary - someone has to be negligent if a football game is played on quicksand.

by using reasonable care, there is still no way to eliminate the risk of getting tackled/breaking arm

someone has a duty to make sure the football field is in playing condition.

no one has a duty to protect every football player from broken limbs, because the risk cannot be prevented by using reasonable care - football is a violent sport.


this is not implied secondary assumption of the risk.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 2:35 pm

but knowing it's inherently violent wouldn't that be an impetus to force the stadium to exercise greater care to protect their players? what about if say the NFL with the replacement refs - resulted in a situation where their incompetence led to a player dying. would they have not had a suit against the league?

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 2:36 pm

nucky thompson wrote:LOL - is playing on quicksand, falling and dying, an inherent risk of Football? what about getting tackled and breaking your arm? -- which harm is inherent to the game of football?

by using reasonable care, the football field would not be quicksand, therefore it would not be implied primary - someone has to be negligent if a football game is played on quicksand.

by using reasonable care, there is still no way to eliminate the risk of getting tackled/breaking arm

someone has a duty to make sure the football field is in playing condition.

no one has a duty to protect every football player from broken limbs, because the risk cannot be prevented by using reasonable care - football is a violent sport.


this is not implied secondary assumption of the risk.

that's true - so no quicksand. let's say a negligently maintained field - badly kept grass, not up to par with customary stadiums?

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 2:37 pm

probably so - dying is not an inherent risk to the game of football. Broken limbs are an inherent risk when playing football.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby Icculus » Mon Nov 26, 2012 2:38 pm

uvabro wrote:but knowing it's inherently violent wouldn't that be an impetus to force the stadium to exercise greater care to protect their players? what about if say the NFL with the replacement refs - resulted in a situation where their incompetence led to a player dying. would they have not had a suit against the league?


No, they wouldn't have. Just no.

Edit: There is no way the incompetence of a ref. would be a but-for cause of the injury.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 2:39 pm

uvabro wrote:
nucky thompson wrote:LOL - is playing on quicksand, falling and dying, an inherent risk of Football? what about getting tackled and breaking your arm? -- which harm is inherent to the game of football?

by using reasonable care, the football field would not be quicksand, therefore it would not be implied primary - someone has to be negligent if a football game is played on quicksand.

by using reasonable care, there is still no way to eliminate the risk of getting tackled/breaking arm

someone has a duty to make sure the football field is in playing condition.

no one has a duty to protect every football player from broken limbs, because the risk cannot be prevented by using reasonable care - football is a violent sport.


this is not implied secondary assumption of the risk.

that's true - so no quicksand. let's say a negligently maintained field - badly kept grass, not up to par with customary stadiums?



if P steps in a crater - which is there because the field is negligently maintained - and as a result P breaks his ankle, there may be a claim there. If field is negligently maintained, and a DE sacks a QB and QB breaks his arm, there is no claim because the resulting harm is not a result of the negligently maintained field.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 2:46 pm

Icculus wrote:
uvabro wrote:but knowing it's inherently violent wouldn't that be an impetus to force the stadium to exercise greater care to protect their players? what about if say the NFL with the replacement refs - resulted in a situation where their incompetence led to a player dying. would they have not had a suit against the league?


No, they wouldn't have. Just no.

Edit: There is no way the incompetence of a ref. would be a but-for cause of the injury.

but it doesn't have to be.

it just has to substantially increase the risk.

why was lone palm hotel responsible for drowning by not having a no lifeguard on duty sign when the pool was empty?

why was reynolds liable for not having lights by the stairs when fat people fall all the time?

breaking a limb in football only helps my argument. it's clearly a harm within the risk of not taking reasonable care. i'm not arguing every hurt player should recover, but where the negligence of D substantially increases their chances of harm, they should recover.

P is consenting to the natural risks of the game - not the negligent amplification of those risks.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby Jimbo_Jones » Mon Nov 26, 2012 2:49 pm

Take this down. All set? Imagine an old woman comes to dinner with you. While you're mixing her drink, she slips on an ice cube, slides across the room smashing into your new breakfast table, demolishing it and killing herself. Got that? After you've cleaned her up off the floor, you discover a statute which says that homeowners must keep their land free of dangerous ice, especially, but not exclusively, ice on their sidewalks. And you find out that the old lady suffered from dropsy, a falling sickness. So you're sued on two accounts: the one relying on the statute, and the other ordinary negligence.

Can they recover from you for having caused the old lady's death? Can you recover the price of the breakfast table from the old bag's estate? Write out an answer, take a half hour to do it. No help from your friend.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 2:49 pm

nucky ur argument changed my facts around. i said p falls and breaks leg because field is negligently maintained. obviously the negligence needs to link to the harm. let's argue based on each other's words, not the words that make counters easier :-)

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 2:51 pm

Jimbo_Jones wrote:Take this down. All set? Imagine an old woman comes to dinner with you. While you're mixing her drink, she slips on an ice cube, slides across the room smashing into your new breakfast table, demolishing it and killing herself. Got that? After you've cleaned her up off the floor, you discover a statute which says that homeowners must keep their land free of dangerous ice, especially, but not exclusively, ice on their sidewalks. And you find out that the old lady suffered from dropsy, a falling sickness. So you're sued on two accounts: the one relying on the statute, and the other ordinary negligence.

Can they recover from you for having caused the old lady's death? Can you recover the price of the breakfast table from the old bag's estate? Write out an answer, take a half hour to do it. No help from your friend.

have class in 3 minutes. but short answer is she can recover because of negligence per se from the statute, because while it's not the right plaintiff, it's the right kind of harm (slipping) and courts are more lenient with right harm wrong p then vice versa.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 2:54 pm

uvabro wrote:nucky ur argument changed my facts around. i said p falls and breaks leg because field is negligently maintained. obviously the negligence needs to link to the harm. let's argue based on each other's words, not the words that make counters easier :-)



i was giving a situation where the negligently maintained field would not give rise claim. Did i so much as hint that was your argument? I first addressed your facts, then just threw something else out there - dial down the defensiveness guy, we all just here to learn and discuss right?

Kage3212
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby Kage3212 » Mon Nov 26, 2012 6:41 pm

Jimbo_Jones wrote:Take this down. All set? Imagine an old woman comes to dinner with you. While you're mixing her drink, she slips on an ice cube, slides across the room smashing into your new breakfast table, demolishing it and killing herself. Got that? After you've cleaned her up off the floor, you discover a statute which says that homeowners must keep their land free of dangerous ice, especially, but not exclusively, ice on their sidewalks. And you find out that the old lady suffered from dropsy, a falling sickness. So you're sued on two accounts: the one relying on the statute, and the other ordinary negligence.

Can they recover from you for having caused the old lady's death? Can you recover the price of the breakfast table from the old bag's estate? Write out an answer, take a half hour to do it. No help from your friend.


I just did a quick write up for the Neg. Per Se piece of this....I LOVE THIS IDEA FOR A THREAD....if our professor gave out a practice problem for some of our classes do you think there is any sort of violation that I should be worried about if I were to post it in here?

Negligence Per Se:

First look to see 1.) if a statute was violated 2.) was the statute specific enough (we learned Journal’s Checklist) 3.) Is the resulting harm the type that the legislature tried to prevent and 4.) is the plaintiff a member of the class that is supposed to be protected.

The question is phrased in a way to say that the old woman came to dinner with me, not expressly stating that dinner took place in my house. Perhaps the events took place in my restaurant, where the plaintiff crashed into a new breakfast table that I had just purchased for said restaurant. Since is isn’t explicitly clear that the events took place in my home, it may not be that the statute applies, as the statute specifically states “homeowners.” Assuming the events took place in my home, we would need to see if the specificity of the statute is sufficient. We would need more facts to determine this. It is likely that the plaintiff is a member of the class that the legislature intended to protect, namely 3rd parties slipping on property. But perhaps not, as this particular plaintiff was an invitee in my home. It may be the case that the legislature only intended to protect unwary passerbys outside the home from dangerous ice conditions.

Assuming the above are satisfied, we look to see whether slipping on ice cubes within a home is the harm that the legislature intended to prevent. I would argue that the legislature intended ice resulting from dangerous weather conditions that result in ice forming on my property, such as blizzards. Although the statute is broad, stating that land must be kept free from all dangerous ice, I would argue that such broad language has its limitations as is the case here; ice in my kitchen does not pose the societal danger as ice on the sidewalks outside my home. To do the parade of horribles, what if the plaintiff left her hand in my freezer for 12 hours because she was an idiot? Would it be dependent upon me to remove the freezer from my home? Lock the freezer? Any ice can be spun to be dangerous ice given the circumstances. The legislature included the word sidewalks for a reason, although qualified, and it seems they intended to prevent unwary public harm from resulting on my property. Plaintiff’s estate would argue that the words are clear and that there was dangerous ice within the home. Although this argument hold up to the plain meaning, it is likely not the harm the legislature intended to prevent. Additionally I may have a valid excuse for non-compliance, mainly not being aware that a dangerous ice statute applies to ice cubes on the floor within my home. If I can prove that there was no way that I should have known of compliance with this statute I may be able to protect myself from liability.




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