Torts question!

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splittermcsplit88
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Torts question!

Postby splittermcsplit88 » Thu Dec 06, 2012 12:25 am

It's about negligence. If the hypo gives a criminal statute, I know you look at what type of harm it is intended to prevent and the class it is intended to protect. If it does fall under this, is it negligence per se? And then, should I talk about the different jurisdictions which may look at it in three different ways? (per se, prima facie, some evidence)

If it's negligence per se (arising from violation of statute), I don't need to talk about whether a duty was owed (cardozo and andrews) right?

musicfor18
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Re: Torts question!

Postby musicfor18 » Thu Dec 06, 2012 12:34 am

splittermcsplit88 wrote:It's about negligence. If the hypo gives a criminal statute, I know you look at what type of harm it is intended to prevent and the class it is intended to protect. If it does fall under this, is it negligence per se? And then, should I talk about the different jurisdictions which may look at it in three different ways? (per se, prima facie, some evidence)

If it's negligence per se (arising from violation of statute), I don't need to talk about whether a duty was owed (cardozo and andrews) right?


Right. The whole point of negligence per se is that the statute creates the duty and defines a breach of that duty. So, as long as you can establish that (1) the D violated the statute, (2) the statute was meant to prevent the same kind of harm that resulted to the P, and (3) the statute was meant to protect the same class of persons as the P, then you've established a breach of duty. But you still need to prove cause-in-fact and proximate cause.

My professor didn't talk about any variations on how this is used in different jurisdictions, though, so it might be that it doesn't conclusively establish the breach element in some approaches.

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splittermcsplit88
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Re: Torts question!

Postby splittermcsplit88 » Thu Dec 06, 2012 12:38 am

Okay, thanks! I mean I wouldn't even have to talk about how the D was supposed to act. I just don't understand how a question containing this could be allotted 1 hour. Seems like I could get it done in 20 min. I don't have to talk about causation either.

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dannynoonan87
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Re: Torts question!

Postby dannynoonan87 » Thu Dec 06, 2012 11:48 am

One thing that threw me off on my torts midterm was a statute that became effective in 2012, but the injuries occurred in 2011. So I said negligence per se didn't apply because of the timing. I got some points for my analysis (and just spotting the issue of negligence per se - there was a lot going on in the fact pattern), but left some on the table because I should have argued that it still applies. Since the statute was enacted it shows that the legislature reflects society's view this kind of behavior is unreasonable and should be deterred. Watch out for a statute like that.

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jkpolk
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Re: Torts question!

Postby jkpolk » Thu Dec 06, 2012 11:53 am

can always argue that the legislative purpose wasnt to create a cause of action. if the legislature didnt want a cause of action the statute is merely probative into whether or not the act constituted negligence. Boom now you get free negligence points too.




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