1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

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paulshortys10
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby paulshortys10 » Mon Nov 26, 2012 6:53 pm

Here's a variation of a contracts exam I got.

1. J begins employment at a private school at a salary of 50k for one year. The written employment contract provides a 50% discount off tuition at the school for J's 2 children, who were enrolled in the school. Tuition was ordinarily 10k a year per student. Another provision in contract provides that J is obligated to pay the tuition for the full year, even if she withdraws her kids, "because of difficulty in enrolling additional children once school starts". J quits the job at the beginning of the 2nd week, without notice. School finds a new teacher with equal skills and pays her 47k a year. The new teacher ALSO has 2 children enrolled in the school with the same tuition break as Theodora's children. The school has a capacity of 100 children, but had only enrolled 95 but the time J accepted employment. What are the school's rights against J?

2. P puts an add in the classified ads, on Oct 10, saying " free swingset to anyone that will the swingset from my backyard" P was trying to remodel the backyard and had no use for it anymore. On oct 13, H calls P and says she wants the swingset, without having seen it yet, and will pick it up oct 15; P gives H directions to her house. On Oct 14, Z goes straight to P's house and tells her she wants the swingset, and with P's permission removes it and takes it home. Does H have any rights?

3. X orally agrees to build a wall for Y for 16k. X quits the job after expending 4k on the job, and Y having already paid 2k towards the price. Y hires A for 15k to complete construction. X's total cost to complete job would've been 12. What are the rights of each party?

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby gaud » Mon Nov 26, 2012 7:00 pm

taaaaggggg

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BuckinghamB
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby BuckinghamB » Mon Nov 26, 2012 8:13 pm

uvabro wrote: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.


If you're representing someone from the bleachers in this hypo, could you argue for res ipsa against the party who installed the bleachers? Seems like collapsing bleachers might be one of those situations.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 8:41 pm

BuckinghamB wrote:
uvabro wrote: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.


If you're representing someone from the bleachers in this hypo, could you argue for res ipsa against the party who installed the bleachers? Seems like collapsing bleachers might be one of those situations.

you prob can try.

res ipsa requires (according to the prosser definition): (1) the thing norm doesn't happens without negligence, (2) cause in d's exclusive control, (3) no intervening acts from d.

res ipsa may be tougher because d can say someone screwed around with it. additionally, we'd need to know if they were being used in the way they're supposed to be used - weight limits would be the main thing, in which case liability might shift to the people responsible for supervising the stands. assuming these things would be ruled out, res ipsa would be a good argument. there's a bunch of escalator cases so this seems kinda similar. good call bro.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 8:51 pm

paulshortys10 wrote:Here's a variation of a contracts exam I got.

1. J begins employment at a private school at a salary of 50k for one year. The written employment contract provides a 50% discount off tuition at the school for J's 2 children, who were enrolled in the school. Tuition was ordinarily 10k a year per student. Another provision in contract provides that J is obligated to pay the tuition for the full year, even if she withdraws her kids, "because of difficulty in enrolling additional children once school starts". J quits the job at the beginning of the 2nd week, without notice. School finds a new teacher with equal skills and pays her 47k a year. The new teacher ALSO has 2 children enrolled in the school with the same tuition break as Theodora's children. The school has a capacity of 100 children, but had only enrolled 95 but the time J accepted employment. What are the school's rights against J?


2. P puts an add in the classified ads, on Oct 10, saying " free swingset to anyone that will the swingset from my backyard" P was trying to remodel the backyard and had no use for it anymore. On oct 13, H calls P and says she wants the swingset, without having seen it yet, and will pick it up oct 15; P gives H directions to her house. On Oct 14, Z goes straight to P's house and tells her she wants the swingset, and with P's permission removes it and takes it home. Does H have any rights?

3. X orally agrees to build a wall for Y for 16k. X quits the job after expending 4k on the job, and Y having already paid 2k towards the price. Y hires A for 15k to complete construction. X's total cost to complete job would've been 12. What are the rights of each party?

gonna do the rest later, but under (1) i assume by rights u mean remedies?

how many weeks are in the school year? i'm going to go with 50 to make the math easy.

so obviously J breached, but even as the breaching party he's entitled to restitution for the amount of work he did do so he's entitled to that 1 week of salary (let's say 1k). By breaching, P is entitled to cover so that'd be the difference between what he expected to pay J and what he's paying the replacement. So if he owes J 1k, and only pays the new guy 47k he actually saves $ from this breach. Therefore, J owes no damages thus far.

P may want to argue that because he was in a rush, he couldn't get the same quality of teacher for this price (maybe he sacrificed on some requirements J had like a masters or the like). However, P will need to display this resulted in tangible material damage in some way - maybe fewer students enrolled? This does not seem to be the case, however.

Regarding the kids at the discount, J will have satisfied the terms of the K by keeping them in for the full year. However, from looking at the agreement and behavior of the parties in which the 50% discount was part of the consideration for working for the whole year, P may want to argue that either the discount was (1) a promissory condition or (2) a consideration similar to the salary. As P isn't fully enrolled and as he states, it's tough to fill up a classroom after school starts, he will likely not want to consider it a promissory condition of J's employment as then J will be free to yank his children out. By adapting the consideration argument, P can try to allege that the discount only entitles him to 1/50 of a 50% discount or a 1% discount because J only completed 2% of his performance.

Because P had to extend the discount to the replacement teacher, he may contend that J is liable for the discount price or 5k multiplied by 2, 10k total. However, J can counter that P will need to demonstrate he lost money from this deal by demonstrating what his expenses are to each child. Again, P cannot yet prove to be a lost volume seller, because the school is not at 100% enrollment.

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paulshortys10
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby paulshortys10 » Mon Nov 26, 2012 8:57 pm

Fuck bro, i forgot to mention 1 key detail. She pulls the kids out when she quits. Now what?

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 9:08 pm

paulshortys10 wrote:Fuck bro, i forgot to mention 1 key detail. She pulls the kids out when she quits. Now what?

has she paid the 5k? i think my analysis would be much the same, that she'd be liable to the 5k but u can't keep the kids in school - u can't get a equitable relief to force children to attend a particular school u can only get the dough. would she be liable to the 10k instead of the 5? i don't think so. i think P has grounds to rescind the discount if she argues it was either a condition precedent or part of the consideration for working there. but in order to get the 10k she'd have to show she's a lost volume seller or that the breach prevented her from making a profit. i can't even think of a good counterargument. someone else chime in.

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paulshortys10
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby paulshortys10 » Mon Nov 26, 2012 9:13 pm

uvabro wrote:
paulshortys10 wrote:Fuck bro, i forgot to mention 1 key detail. She pulls the kids out when she quits. Now what?

has she paid the 5k? i think my analysis would be much the same, that she'd be liable to the 5k but u can't keep the kids in school - u can't get a equitable relief to force children to attend a particular school u can only get the dough. would she be liable to the 10k instead of the 5? i don't think so. i think P has grounds to rescind the discount if she argues it was either a condition precedent or part of the consideration for working there. but in order to get the 10k she'd have to show she's a lost volume seller or that the breach prevented her from making a profit. i can't even think of a good counterargument. someone else chime in.


Yea, I think there;s good grounds for saying P is a LVS, but that in this case, there is no profit lost because these are substitutes?
The provision is the party that trips me up though, since it seems like some sort of liquidated damages penalty, even though in a way it served as consideration for the deal.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 9:14 pm

Kage3212 wrote:
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.

is not knowing the statute exists a defense to breaching it? never covered this but my hunch is that's impossible because if u can be locked up for not knowing the law, u can prob be sued because locking up is a worse punishment.

u could say u took a safer precaution or it would have been impossible for u to follow the statute because u r actually a snowman.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 9:17 pm

paulshortys10 wrote:
uvabro wrote:
paulshortys10 wrote:Fuck bro, i forgot to mention 1 key detail. She pulls the kids out when she quits. Now what?

has she paid the 5k? i think my analysis would be much the same, that she'd be liable to the 5k but u can't keep the kids in school - u can't get a equitable relief to force children to attend a particular school u can only get the dough. would she be liable to the 10k instead of the 5? i don't think so. i think P has grounds to rescind the discount if she argues it was either a condition precedent or part of the consideration for working there. but in order to get the 10k she'd have to show she's a lost volume seller or that the breach prevented her from making a profit. i can't even think of a good counterargument. someone else chime in.


Yea, I think there;s good grounds for saying P is a LVS, but that in this case, there is no profit lost because these are substitutes?
The provision is the party that trips me up though, since it seems like some sort of liquidated damages penalty, even though in a way it served as consideration for the deal.

i don't agree with it being punitive - i mean maybe if she's making more than what her profits would be if the kids drop out, but companies can have a "take it or leave it k" where u pay everything up front bec that's where the cost is, like the cost of gas coming in ur home is really all just being on the grid where the amount of gas is really little. i mean, are cell phone contracts punitive?

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby Kage3212 » Mon Nov 26, 2012 9:30 pm

uvabro wrote:
Kage3212 wrote:
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.

is not knowing the statute exists a defense to breaching it? never covered this but my hunch is that's impossible because if u can be locked up for not knowing the law, u can prob be sued because locking up is a worse punishment.

u could say u took a safer precaution or it would have been impossible for u to follow the statute because u r actually a snowman.


There is some quirky thing in torts that says if you had no idea that you had to comply, nor should you have any idea that you had to comply, then you may not be liable. One example was given in class where a guy purchased an apartment building with decks on them. One of the decks on the apartment building crashed during some sort of party...and the girl tried to sue saying that he didn't comply with the building code (which was in violation). The guy successfully argued (I am fairly certain) that he had no constructive knowledge of the deck not being in compliance, he didn't know or should have known, therefore the court says he couldn't be found liable. He didn't build the intial deck, the property inspectors never said anything, and there was never any fuss; the principle was that if you have zero idea that you are violating something then we wont necc. hold you accountable for that thing. The more i think about this case the more I realize that this must be a super fine line when it comes down to "actual or constructive knowledge" and "did you know/should you have known"

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 9:33 pm

Kage3212 wrote:
uvabro wrote:
Kage3212 wrote:
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.

is not knowing the statute exists a defense to breaching it? never covered this but my hunch is that's impossible because if u can be locked up for not knowing the law, u can prob be sued because locking up is a worse punishment.

u could say u took a safer precaution or it would have been impossible for u to follow the statute because u r actually a snowman.


There is some quirky thing in torts that says if you had no idea that you had to comply, nor should you have any idea that you had to comply, then you may not be liable. One example was given in class where a guy purchased an apartment building with decks on them. One of the decks on the apartment building crashed during some sort of party...and the girl tried to sue saying that he didn't comply with the building code (which was in violation). The guy successfully argued (I am fairly certain) that he had no constructive knowledge of the deck not being in compliance, he didn't know or should have known, therefore the court says he couldn't be found liable. He didn't build the intial deck, the property inspectors never said anything, and there was never any fuss; the principle was that if you have zero idea that you are violating something then we wont necc. hold you accountable for that thing. The more i think about this case the more I realize that this must be a super fine line when it comes down to "actual or constructive knowledge" and "did you know/should you have known"

Yeah i also thought about it some more and it's debatable D even breached the statute unless it's a strict liability offense. Think about it - the ice was still ice when the lady tripped. That means it was still frozen. That isn't the negligence the statute's designed to combat - like leaving ice on ur porch for a week.

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

Postby nucky thompson » Mon Nov 26, 2012 10:04 pm

neg per se does is not a cause of action separate from neg - so to answer your question about whether the D needed to know about the statute, no. Neg per se is a way of establishing the standard of care owed by the D to the P. In most jurisdictions it is used as evidence. Ie: the statute says what the homeowner's duty of care is with regard to ice - gotta have it clean - instead of using the licensee, or reasonable person standard, which would then have to be determined (licensee: was the ice a latent danger known to the D but not the P - or r/p: did D act as a reasonable person would have under the circumstances or were they stirring that drink real crazy like throwin ice everywhere making the place all kinds of dangerous) - statute gives standard of care, court can adopt that standard or not - once adopted, jury just determines if D breached the duty
Minority rule never replaces the r/p standard with the statutory stand of care. always uses the r/p standard, then gives jury the statutory standard of care as evidence to determine if the r/p standard was breached.

the statue here would not be applied, because a court will likely determine this is not the class of harms that the statute is intended to protect (statute, by mentioning sidewalks, seems to be talking about organic ice not ice in a mixer) - its possible the P is not within the class of persons intended to be protected either - a lot of these statutes are intended to protect the public generally - cant remember why this is a distinction, but i remember it with regard to premises liability and whether or not someone could sue homeowner if the owner did not shovel his sidewalk (case said no)

uvabro
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 10:17 pm

nucky thompson wrote:neg per se does is not a cause of action separate from neg - so to answer your question about whether the D needed to know about the statute, no. Neg per se is a way of establishing the standard of care owed by the D to the P. In most jurisdictions it is used as evidence. Ie: the statute says what the homeowner's duty of care is with regard to ice - gotta have it clean - instead of using the licensee, or reasonable person standard, which would then have to be determined (licensee: was the ice a latent danger known to the D but not the P - or r/p: did D act as a reasonable person would have under the circumstances or were they stirring that drink real crazy like throwin ice everywhere making the place all kinds of dangerous) - statute gives standard of care, court can adopt that standard or not - once adopted, jury just determines if D breached the duty
Minority rule never replaces the r/p standard with the statutory stand of care. always uses the r/p standard, then gives jury the statutory standard of care as evidence to determine if the r/p standard was breached.

the statue here would not be applied, because a court will likely determine this is not the class of harms that the statute is intended to protect (statute, by mentioning sidewalks, seems to be talking about organic ice not ice in a mixer) - its possible the P is not within the class of persons intended to be protected either - a lot of these statutes are intended to protect the public generally - cant remember why this is a distinction, but i remember it with regard to premises liability and whether or not someone could sue homeowner if the owner did not shovel his sidewalk (case said no)

thanks for that. u can also probably bring in the licensee distinction so ud only have a duty to warn of the ice if the statute doesn't apply.

hey on this front - what's the current view on duty owed to guests in ur home? reasonable care or just duty to warn?

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

Postby nucky thompson » Mon Nov 26, 2012 10:21 pm

Modern Unitary Approach - A minority of states have rejected the common-law status approach. Under this approach a duty of reasonable care is owed any land entrant regardless of status (Rowland v. Christian)

uvabro
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 10:23 pm

so then a majority still are fine with just the sign?

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 10:30 pm

for licenses landowner has to tell the licensee of dangers that landowner is aware of - and that the licensee is unaware of - if you can argue the sign gives licensee enough info - notice - to be aware of the danger, sign will be good - but then, if not too much of a stretch, you want to argue for the P and say the sign was insufficient and a verbal warning or somethign more should have been given

Kage3212
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby Kage3212 » Mon Nov 26, 2012 10:36 pm

Here is a sample question we got....lets see you guys/gals parse it.

A promises to babysit as a favor, free of charge. B makes plans to speak at an event, which is very important for her career. A never shows up to babysit, nor offers any explanation other than that he didn’t feel like it. B is forced to cancel her appointment and suffers professional. What is the strongest argument for B recovering damages from A? Also, what would those damages be?

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 10:43 pm

1. J begins employment at a private school at a salary of 50k for one year. The written employment contract provides a 50% discount off tuition at the school for J's 2 children, who were enrolled in the school. Tuition was ordinarily 10k a year per student. Another provision in contract provides that J is obligated to pay the tuition for the full year, even if she withdraws her kids, "because of difficulty in enrolling additional children once school starts". J quits the job at the beginning of the 2nd week, without notice. School finds a new teacher with equal skills and pays her 47k a year. The new teacher ALSO has 2 children enrolled in the school with the same tuition break as Theodora's children. The school has a capacity of 100 children, but had only enrolled 95 but the time J accepted employment. What are the school's rights against J?


- After J quitting, school has rights to cover costs resulting from breach. School replaces her with a teacher making 3k less, but with equal skills. It is likely that this extra 3k gained from lower salary covers the costs that were incurred in the time between teacher quitting and new teacher starting - but if not, J will be liable for the extra expenses.

- Provision in K explicitly states reason for requiring full tuition payment - due to difficulty replacing students after school has started. the terms of the K are explicit, so J may be liable for costs of remaining tuition (if tuition is currently unpaid - facts are unclear) since she breached and there is a partial liquidation clause regarding the children's tuition. J will argue the purpose of the provision was to protect school from unfilled seats - replacement teacher putting two new kids in school, that otherwise would not have been there but for J quitting (reasonable new teacher wouldn't have enrolled students if she did not teach there - what school did her kids begin at, before switching? -- if court buys this argument, J's liabilities may be for the days her student's were in the school pro rated based on year tuition. If tuition pre-paid, she may be able to get some restitution of amount overpaid.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 10:45 pm

Kage3212 wrote:Here is a sample question we got....lets see you guys/gals parse it.

A promises to babysit as a favor, free of charge. B makes plans to speak at an event, which is very important for her career. A never shows up to babysit, nor offers any explanation other than that he didn’t feel like it. B is forced to cancel her appointment and suffers professional. What is the strongest argument for B recovering damages from A? Also, what would those damages be?

Typically, gift promises are unenforceable as contracts, and the willing to babysit as a "favor" is a prime example of a gift promise. However, P can point to promissory estoppel which states that if a promise is made by which the promisor should reasonably expect to induce an action or forbearance on the part of the promisee, and it does induce such an action or forbearance then D may be promissory estopped from stating it was just a gift promise.

P will show she reasonably relied on D's promise, and did forbore speaking to other babysitters as a result of this reliance.

As far as the damages under Hadley v. Baxendale the damages asserted by a party must have been foreseeable to the defendant. P will have to demonstrate she forewarn her about the appointment. It does seem sensible that by standing her up she'd miss something, but what time of day was this? Would it have been reasonable for D merely to presume it was a date? Additionally, there is an issue of certainty - how can we extract how precisely she was hurt professionally, or what missing the meeting caused her in specific financial damages. The courts are reluctant to give damages when the precise figure cannot be exacted as we saw in Ericson where a Playgirl model couldn't recover a harm to their professional career by only being on 1/8 of a page as opposed to the front cover, as the contract detailed. There is also an issue of mitigation. At what point, would it have been reasonable for P to contact another babysitter? Did she call D to remind her or confirm? Her non responsiveness may have evidenced a repudiated breach, and given her a duty to mitigate by taking initiative and getting another babysitter, the cost of which D may have been responsible for (if last minute cancellation caused her detrimental reliance, and a more expensive babysitter than if D never promised).

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 10:50 pm

Kage3212 wrote:Here is a sample question we got....lets see you guys/gals parse it.

A promises to babysit as a favor, free of charge. B makes plans to speak at an event, which is very important for her career. A never shows up to babysit, nor offers any explanation other than that he didn’t feel like it. B is forced to cancel her appointment and suffers professional. What is the strongest argument for B recovering damages from A? Also, what would those damages be?



strongest argument would be based on restatement section 90, enforcing gratuitous promises - (1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. -- there can be no damages. the question posed, what would they be - is exactly the problem. How do you quantify her professional suffering? you cant. strongest argument for damages would have to include more facts - ie: she was fired for canceling at event or something

uvabro
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 10:53 pm

nucky thompson wrote:
Kage3212 wrote:Here is a sample question we got....lets see you guys/gals parse it.

A promises to babysit as a favor, free of charge. B makes plans to speak at an event, which is very important for her career. A never shows up to babysit, nor offers any explanation other than that he didn’t feel like it. B is forced to cancel her appointment and suffers professional. What is the strongest argument for B recovering damages from A? Also, what would those damages be?



strongest argument would be based on restatement section 90, enforcing gratuitous promises - (1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. -- there can be no damages. the question posed, what would they be - is exactly the problem. How do you quantify her professional suffering? you cant. strongest argument for damages would have to include more facts - ie: she was fired for canceling at event or something

yep, i mean maybe she can present a receipt or it was determined how much she'd get paid. maybe specific k's got terminated after. there r ways, dude. u don't wanna know about them, but there are ways.

still, did she have a duty to mitigate? at what pt does it become evident the bitch ain't coming.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby Kage3212 » Mon Nov 26, 2012 11:01 pm

The two issues that are significant here that I am trying to wrap my head around are:

1.) Did A the promisor, reasonably expect to induce action or forbearance? Is this reasonable expectation general (its clearer that it would induce B to make plans of some sort, as the need for a babysitter usually because plans are being made) but the question I have difficulty with is does it have to be associated with the specific speaking engagement. Did A reasonably expect B to go out and set up something so important and vital to her career? If A did not reasonably expect such a significant thing..does reliance fail?

2.) Injustice is avoided only by the enforcement of the promise. Enforcing the promise at this point doesn't avoid the injustice, it has already taken place and its hard to determine whether it can even be made up for. Also, you wouldn't be able to enforce this specific promise because you cant enforce a service contract. So would a court look at this and say we cant avoid injustice here....and then do what?

The more i get involved with reliance the more confusing it gets.

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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby nucky thompson » Mon Nov 26, 2012 11:03 pm

under some circumstances a party's conduct alone will clearly indicate they will not perform the contract - a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach - at which point the duty to mitigate deals with how damages are computed - ie: i agree to buy a commodity from you. you clearly repudiate the deal, saying you have no goods to sell me. at this point, the cost of the goods on the market are a dollar. by waiting until the performance day, cost of goods are 5 dollars. I will only be able to recover according to market price at time of your repudiation.

here, the promise was a promise to perform an act. promisee under no duty to call her up and seek assurance with regard to her performing the promise. Reasonable that she would wait for the babysitter to show up, and call once it became clear babysitter was late etc. at that point, no act would mitigate damages, as there are no damages to compute according to these facts.

uvabro
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Re: 1L HYPOTHETICALS - WE DISCUSS GOOD HYPOS

Postby uvabro » Mon Nov 26, 2012 11:07 pm

Kage3212 wrote:The two issues that are significant here that I am trying to wrap my head around are:

1.) Did A the promisor, reasonably expect to induce action or forbearance? Is this reasonable expectation general (its clearer that it would induce B to make plans of some sort, as the need for a babysitter usually because plans are being made) but the question I have difficulty with is does it have to be associated with the specific speaking engagement. Did A reasonably expect B to go out and set up something so important and vital to her career? If A did not reasonably expect such a significant thing..does reliance fail?

2.) Injustice is avoided only by the enforcement of the promise. Enforcing the promise at this point doesn't avoid the injustice, it has already taken place and its hard to determine whether it can even be made up for. Also, you wouldn't be able to enforce this specific promise because you cant enforce a service contract. So would a court look at this and say we cant avoid injustice here....and then do what?

The more i get involved with reliance the more confusing it gets.

1.) ur thinking too hard, dude.

it just means did the promisee reasonably rely on it - like if u say to me i promise ill give u a million dollars tomorrow, i'm not reasonable if i go out and buy 500k of cocaine and a new ferrari.

her reliance here seems reasonable.

the knowing about the appointment only comes in after there's been reasonable reliance, thus making a K, and that K has been breached. it only comes in to assess damages.

2.) well, a court can never order specific performance of a service because slavery was abolished. the court would just say it's unjust so pay motherfucker. they'd use the word motherfucker. at least i would.




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