New York Bar Day 1 Thread Forum

[k9999]

What exactly did the SOL essay question ask about. I think I may have read it incorrectly. Did it asked if his claim against Cutter was barred?

[kaiser]

What exactly did the SOL essay question ask about. I think I may have read it incorrectly. Did it asked if his claim against Cutter was barred?

I'm pretty sure thats what it asked.

[k9999]

Okay because I wrote about the SOL from the strict product's liability perspective and not from a latent injury negligence standard because the claim against Cutter was for a design defect. Is that incorrect and will I not get any points for this?

[kaiser]

Okay because I wrote about the SOL from the strict product's liability perspective and not from a latent injury negligence standard because the claim against Cutter was for a design defect. Is that incorrect and will I not get any points for this?

The SOL in NY for a strict liability claim, whether design or manufacturing defect, is 3 years from the date of injury, or if its a latent injury, 3 years from the date it (the injury) either was discovered, or the date on which it should have been discovered. Analyzed like that, the facts indicated he should have discovered it over 3 years before he brought the claim. So for NY practice SOL purposes, it would be barred. But I'm pretty sure the strict liability analysis was written in such a way as to have us disregard our conclusion to the previous issue.

Even if you treat it as a design defect, that doesn't change how the SOL is measured. The harm didn't occur when they designed it defectively, or when he first used it without the guard. The harm occurred slowly and over time, and we can't possibly expect him to realize the harm at first. So the latent defect issue is inherently tied into how we conceptualize the harm from the defective design. The design defect itself, in a vacuum with nothing more, is not actionable. Product defects are actionable only when they cause harm, and thats what you look to the for the SOL.

[k9999]

Okay that makes me feel better. From my bar review we only learned that strict products liability SOL arose at the time the injury happened and never learned the latent injury part. But I still said in my analysis that the injury occurred during the job, but he started experiencing symptoms right after retirement in 2007 and he should have gone to the doctor sooner when the symptoms first arose to avoid further consequences. He simply waited too long to get checked out. That seems like I will get most of the points then right?

[kaiser]

Okay that makes me feel better. From my bar review we only learned that strict products liability SOL arose at the time the injury happened and never learned the latent injury part. But I still said in my analysis that the injury occurred during the job, but he started experiencing symptoms right after retirement in 2007 and he should have gone to the doctor sooner when the symptoms first arose to avoid further consequences. He simply waited too long to get checked out. That seems like I will get most of the points then right?

Sounds like you were on the right track, so I'm sure you will get points

[matthew42]

Can somebody explain why worker's comp was an issue since the guy was retired? I thought it didn't apply to retirees...

I would love for you to be right lol

But the claim was one that arose when he was an employee, since thats when the supposed "breach" occurred when the failed to provide respiratory protection. I mean, if I'm injured on the job, and then retire the next day, I don't think I can go and sue for the injury the day before.

I looked this up under the McKinney's Commentary for the Workers Comp statute. A person cannot get Workers' Comp once he or she has voluntarily retired. To "involuntarily" retire is to retire because of one's work-related injury. The facts didn't indicate that he retired "as a result" of the injury. Instead, the symptoms came on post-retirement. Therefore, he couldn't get Workers' Comp.

This was a negligence issue. That is why they included facts that specifically went to the employer's breach (i.e., Stone knew about this worker's tendency to disable the guard, was aware of the risks, but declined to give him respiratory protection, etc.). It was confusing because the question then asked about the 3rd party cross complaint, which seemed to be triggering the "grave injury" exception to the bar against contribution from employers. But I think they just wanted us to explain joint and several liability, define contribution, and so forth.

[BenJ]

Can somebody explain why worker's comp was an issue since the guy was retired? I thought it didn't apply to retirees...

I would love for you to be right lol

But the claim was one that arose when he was an employee, since thats when the supposed "breach" occurred when the failed to provide respiratory protection. I mean, if I'm injured on the job, and then retire the next day, I don't think I can go and sue for the injury the day before.

I looked this up under the McKinney's Commentary for the Workers Comp statute. A person cannot get Workers' Comp once he or she has voluntarily retired. To "involuntarily" retire is to retire because of one's work-related injury. The facts didn't indicate that he retired "as a result" of the injury. Instead, the symptoms came on post-retirement. Therefore, he couldn't get Workers' Comp.

This was a negligence issue. That is why they included facts that specifically went to the employer's breach (i.e., Stone knew about this worker's tendency to disable the guard, was aware of the risks, but declined to give him respiratory protection, etc.). It was confusing because the question then asked about the 3rd party cross complaint, which seemed to be triggering the "grave injury" exception to the bar against contribution from employers. But I think they just wanted us to explain joint and several liability, define contribution, and so forth.

Yes, but no. Voluntary retirement prevents you from seeking worker's compensation from your employer. However, it does not entitle you to sue your employer in negligence for injuries sustained on the job. You're still barred from suing in tort; you just also can't get worker's compensation if your retirement is voluntary. There's a whole area of litigation based on getting retirements that were basically voluntary declared involuntary (or due to "total disability") in order to receive benefits for injuries just like the one in the question. I think you would have gotten an extra 1/2 or 1/3 point if you noticed that Jake also couldn't seek worker's compensation (or at least talked about whether he was "totally disabled"), but he was definitely barred from suing for negligence.

Doesn't really matter anyway, because you had to talk about the employer's negligence when you talked about contribution. The employer would only be liable to the manufacturer for contribution if they were negligent (in addition to Jake suffering a grave injury).

[matthew42]

Can somebody explain why worker's comp was an issue since the guy was retired? I thought it didn't apply to retirees...

I would love for you to be right lol

But the claim was one that arose when he was an employee, since thats when the supposed "breach" occurred when the failed to provide respiratory protection. I mean, if I'm injured on the job, and then retire the next day, I don't think I can go and sue for the injury the day before.

I looked this up under the McKinney's Commentary for the Workers Comp statute. A person cannot get Workers' Comp once he or she has voluntarily retired. To "involuntarily" retire is to retire because of one's work-related injury. The facts didn't indicate that he retired "as a result" of the injury. Instead, the symptoms came on post-retirement. Therefore, he couldn't get Workers' Comp.

This was a negligence issue. That is why they included facts that specifically went to the employer's breach (i.e., Stone knew about this worker's tendency to disable the guard, was aware of the risks, but declined to give him respiratory protection, etc.). It was confusing because the question then asked about the 3rd party cross complaint, which seemed to be triggering the "grave injury" exception to the bar against contribution from employers. But I think they just wanted us to explain joint and several liability, define contribution, and so forth.

Yes, but no. Voluntary retirement prevents you from seeking worker's compensation from your employer. However, it does not entitle you to sue your employer in negligence for injuries sustained on the job. You're still barred from suing in tort; you just also can't get worker's compensation if your retirement is voluntary. There's a whole area of litigation based on getting retirements that were basically voluntary declared involuntary (or due to "total disability") in order to receive benefits for injuries just like the one in the question. I think you would have gotten an extra 1/2 or 1/3 point if you noticed that Jake also couldn't seek worker's compensation (or at least talked about whether he was "totally disabled"), but he was definitely barred from suing for negligence.

Doesn't really matter anyway, because you had to talk about the employer's negligence when you talked about contribution. The employer would only be liable to the manufacturer for contribution if they were negligent (in addition to Jake suffering a grave injury).

Gotcha. So then in this case, Jake really had no claim whatsoever against the employer, since he retired voluntarily, and did not file the workers' comp claim during his employment. In fact, had there been no third party in the picture, he'd be screwed.

[BillyNoseBleed]

Did anyone take NJ bar??? Thoughts??? Pretty sure I got a 0 on the civ pro question.

[BaiAilian2013]

Did anyone take NJ bar??? Thoughts??? Pretty sure I got a 0 on the civ pro question.

Ugh. I feel like I hit a fair amount of the substantive points, but I was so fucking burned out and exhausted from NY (plus the long drive) that I am actually a little concerned about the quality of my writing. My last afternoon answer had only minimal organizational structure.

[BenJ]

Did anyone take NJ bar??? Thoughts??? Pretty sure I got a 0 on the civ pro question.

Class Action Fairness Act was the most unfair thing to test on imaginable. I'm sure you got some points, though.

[corporatelaw87]

On the Wills essay, were those insurance proceeds paid before the testator died, or after the testator died? It wouldn't matter for the question because the son would not have gotten it anyway because the gift adeemed, but my analysis was tied to one of them for that part, can't remember if I actually put the right one because I was so pressed for time and may have misread.

[BillyNoseBleed]

On the Wills essay, were those insurance proceeds paid before the testator died, or after the testator died? It wouldn't matter for the question because the son would not have gotten it anyway because the gift adeemed, but my analysis was tied to one of them for that part, can't remember if I actually put the right one because I was so pressed for time and may have misread.

The insurance proceeds for the Porsche? They were paid after T died.

[BenJ]

On the Wills essay, were those insurance proceeds paid before the testator died, or after the testator died? It wouldn't matter for the question because the son would not have gotten it anyway because the gift adeemed, but my analysis was tied to one of them for that part, can't remember if I actually put the right one because I was so pressed for time and may have misread.

The gift did not adeem. The old Porsche was fairly traceable to the new Porsche (because he traded in the old Porsche for the new one), and then the insurance proceeds from the destruction of the new Porsche were paid after death. That's two of the three ademption exceptions.

[newyorker88]

Is the promise to pay enough to create an option?

[BenJ]

Is the promise to pay enough to create an option?

Yes. An enforceable promise is always valid consideration.

[shadow.]

On the Wills essay, were those insurance proceeds paid before the testator died, or after the testator died? It wouldn't matter for the question because the son would not have gotten it anyway because the gift adeemed, but my analysis was tied to one of them for that part, can't remember if I actually put the right one because I was so pressed for time and may have misread.

The gift did not adeem. The old Porsche was fairly traceable to the new Porsche (because he traded in the old Porsche for the new one), and then the insurance proceeds from the destruction of the new Porsche were paid after death. That's two of the three ademption exceptions.

I thought that the "fairly traceable" exception applies to sales by a guardian of Testator, and not sales by T him/herself.

[corporatelaw87]

Is the promise to pay enough to create an option?

Yes. An enforceable promise is always valid consideration.

Where was this on the essays?

[kaiser]

On the Wills essay, were those insurance proceeds paid before the testator died, or after the testator died? It wouldn't matter for the question because the son would not have gotten it anyway because the gift adeemed, but my analysis was tied to one of them for that part, can't remember if I actually put the right one because I was so pressed for time and may have misread.

The gift did not adeem. The old Porsche was fairly traceable to the new Porsche (because he traded in the old Porsche for the new one), and then the insurance proceeds from the destruction of the new Porsche were paid after death. That's two of the three ademption exceptions.

I thought that the "fairly traceable" exception applies to sales by a guardian of Testator, and not sales by T him/herself.

Yup, the fairly traceable exception doesn't apply to sales by testator himself. This was absolutely ademption.

[kaiser]

Did anyone take NJ bar??? Thoughts??? Pretty sure I got a 0 on the civ pro question.

Funny thing is, I had taken a complex litigation class and knew all about the class action fairness act and the requirements for class certification. But I got to that essay with 15 min left and had no time to show it. Thogh I feel like I nailed the con law and evidence ones, so hopefully that makes up for my non-answer on civ pro

[BenJ]

On the Wills essay, were those insurance proceeds paid before the testator died, or after the testator died? It wouldn't matter for the question because the son would not have gotten it anyway because the gift adeemed, but my analysis was tied to one of them for that part, can't remember if I actually put the right one because I was so pressed for time and may have misread.

The gift did not adeem. The old Porsche was fairly traceable to the new Porsche (because he traded in the old Porsche for the new one), and then the insurance proceeds from the destruction of the new Porsche were paid after death. That's two of the three ademption exceptions.

I thought that the "fairly traceable" exception applies to sales by a guardian of Testator, and not sales by T him/herself.

Yup, the fairly traceable exception doesn't apply to sales by testator himself. This was absolutely ademption.

Oops. Oh well.


The "promise to pay, option contract" was in the NY multiple choice, I think. At least, I recognize what he was talking about, but it definitely wasn't in the essays.

[newyorker88]

Is the promise to pay enough to create an option?

Yes. An enforceable promise is always valid consideration.

Where was this on the essays?

No, it was a multiple choice. The person promised to pay in exchange for keeping the offer open. The issue was whether the mere promise created the option or if you need to actually pay in order to create the option.

[kaiser]

Is the promise to pay enough to create an option?

Yes. An enforceable promise is always valid consideration.

Where was this on the essays?

No, it was a multiple choice. The person promised to pay in exchange for keeping the offer open. The issue was whether the mere promise created the option or if you need to actually pay in order to create the option.

I checked up on that point in a contracts supp I had lying around. A promise to pay for an option is sufficient consideration to create an enforceable option K.

[Cogburn87]

can you commit a robbery by stealing property you own?

Nope. B was trying to reclaim property over which he believed he had a claim of right (and over which he did in fact have a claim of right). Robbery is simply a form of larceny, after all. You can't be guilty of robbery for stealing what you believe to be your own stuff.

Pretty sure this is incorrect. See http://www.nycrimblog.com/nycrim/2010/1 ... bbery.html