emarxnj wrote: BigZuck wrote:
emarxnj wrote:Having a torts meltdown...this is some basic shit but looking at the duty element of a claim. Assuming no special relationship exists, D only had a duty of reasonable care under the circumstances? But if I establish either a special relationship, that the danger is due to D's negligence, co-adventurers/common undertaking, they would then have an affirmative duty to act to PROTECT P from harm? Maybe because it was covered at the beginning of the year, but I'm having a hard-ass time with this, and how to really discuss the role of duty on the exam.
We all have basically a general duty to protect others from harm when we create the risk of harm (Heaven v Pender)
Sometimes there is no duty (Palsgraf- unforseeable plaintiff, etc)
Sometimes things we do or actions we take create a duty (run over a cow- gotta stay and make sure no one else hits the cow and gets into an accident).
I guess I'm not sure what your question is? What distinctions are you having trouble with? BTW I swore to myself I would never think about torts again after I took my final on Tuesday. Oh well.
I don't know really. I just went into a panic mode since I tried doing some practice work today. Sorry to make you revisit it, but can I ask how you "attacked" the exam? Mine is already divided into questions by party, so each one will "A's claims against B, B's defenses" and such. Just go through duty-breach-causation-damages, and discuss issues relevant to each one?
That's probably how I would have done it, if my exam wasn't weird.
I've kind of forgotten the questions on mine, but there were two hour long questions, both re: a comparative negligence statute. In the first fact pattern a dude got rearended and injured, went to work, and then on the way to the doctors after work he got rearended again. The applicable statute had some weird things about apportioning damages. So I had to talk about mitigating, assigning blame in an inextricable tangle, and whether or not the P would be barred from recovery based on how the statute read.
Second question was same fact pattern, except the first rearender was intentional (therefore battery) and the statute was more liberal. Had to compare it to the first situation.
So, not as much of a traditional issue spotter I guess.
tl;dr- Yeah, I probably would go through duty, breach, cause in fact, proximate cause, and damages for each party like you're saying.