1L Substantive Law Questions (Get your BLL on ITT)

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sinfiery
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby sinfiery » Thu Dec 19, 2013 3:25 am

What's the difference between the RoD (Rule of decision) and COA (Cause of action) for arising under analysis? Or define each of them please!

BigZuck
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby BigZuck » Thu Dec 19, 2013 3:57 am

sinfiery wrote:What's the difference between the RoD (Rule of decision) and COA (Cause of action) for arising under analysis? Or define each of them please!


Tempted to say...wut?

RoD is an actual act of Congress. What exactly are you getting at? I mean, I get that Erie is complicated but at least for my class the distinction you're making didn't exist. Or maybe it did but I'm not sure what COA is I guess.

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sinfiery
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby sinfiery » Thu Dec 19, 2013 4:07 am

BigZuck wrote:
sinfiery wrote:What's the difference between the RoD (Rule of decision) and COA (Cause of action) for arising under analysis? Or define each of them please!


Tempted to say...wut?

RoD is an actual act of Congress. What exactly are you getting at? I mean, I get that Erie is complicated but at least for my class the distinction you're making didn't exist. Or maybe it did but I'm not sure what COA is I guess.

hah, sorry this was for subject matter jx. my bad.

figured it out though, was such a fucking ah-hah moment and it took me until 9 hours before the final exam

all for a stupid definition

rod - what decides the case which can be a statute or body of law or something, coa - the statute/law

mu13ski
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby mu13ski » Thu Dec 19, 2013 3:23 pm

Issue preclusion. Imagine the typical car crash preclusion scenario. What role does preclusion play for injuries that arise down the road. Say that a party developed back problems several months down the line and did not include these back problem damages in his initial claim. Is he precluded from bringing this claim against the same opposing party in the first claim?

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Taus11 » Thu Dec 19, 2013 3:32 pm

mu13ski wrote:Issue preclusion. Imagine the typical car crash preclusion scenario. What role does preclusion play for injuries that arise down the road. Say that a party developed back problems several months down the line and did not include these back problem damages in his initial claim. Is he precluded from bringing this claim against the same opposing party in the first claim?

This seems more like a claim preclusion than an issue preclusion, although I suppose both could work depending what happened in the first litigation. According to our casebook, an injured party cannot usually relitigate for future injuries (assuming same transaction and same parties, of course) due to res judicata.

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby BigZuck » Thu Dec 19, 2013 4:07 pm

mu13ski wrote:Issue preclusion. Imagine the typical car crash preclusion scenario. What role does preclusion play for injuries that arise down the road. Say that a party developed back problems several months down the line and did not include these back problem damages in his initial claim. Is he precluded from bringing this claim against the same opposing party in the first claim?


Yeah that's claim preclusion dawg. Can't relitigate things you already (or should have) sued for. I don't think you can seperate different injuries into different "issues" to avoid having them not be precluded.

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby FKASunny » Fri Dec 20, 2013 6:50 pm

People are still here? GO HOME

Lizard
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Sun Dec 22, 2013 2:51 pm

Can you have an intentional tort that is transferred to other victims even if you hurt your first victim? Does transferred intent only apply if you don't hurt your original victim, or can battery/assault/etc. through transferred intent apply to all actors who are directly injured through your intentional tort? E.g. If I assaulted Person A and Person A had a heart attack and collapsed into Person B who hit head and went unconscious and fell on Person C (a child) and the weight of Person B caused C's death, which the mother witnesses (and let's imagine the mother has a panic attack/resulting psyc illness)?

Would the intentional tort transfer to at least Person B or would it stop at Person A? Does the original assault transfer into battery for Person B and C (I don't think it can transfer into IIED for C's mother--but would there be a tort claim by the mother other than wrongful death)? If it did transfer, would the Eggshell Skull rule apply and make Tortfeasor A culpable for all the resulting harms?

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Wearthewildthingsr » Sun Dec 22, 2013 6:05 pm

mu13ski wrote:Issue preclusion. Imagine the typical car crash preclusion scenario. What role does preclusion play for injuries that arise down the road. Say that a party developed back problems several months down the line and did not include these back problem damages in his initial claim. Is he precluded from bringing this claim against the same opposing party in the first claim?


your ? is no longer relevant now I suppose but the answer is it depends.

so it wouldn't be barred by issue preclusion because it wasn't an actual issue that was raised in the previous lawsuit.

so the question is if it's barred by claim preclusion under the same claim element being any claim that could have been raised at time of the filing of the suit. Courts generally interpret this is 2 ways. either they won't bar it because it is a latent injury and due to it being latent and unable to being filed suit at the time it won't be barred.

but if it's a case where it's merely the extent of the injury happened to be more serious than what was thought at the first law suit then it will be barred.

generally for physical injuries it's the latter rather than the former. the former would include cases like cancer from e.g. radiation or something like that.

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Sun Dec 22, 2013 6:54 pm

Lizard wrote:Can you have an intentional tort that is transferred to other victims even if you hurt your first victim? Does transferred intent only apply if you don't hurt your original victim, or can battery/assault/etc. through transferred intent apply to all actors who are directly injured through your intentional tort? E.g. If I assaulted Person A and Person A had a heart attack and collapsed into Person B who hit head and went unconscious and fell on Person C (a child) and the weight of Person B caused C's death, which the mother witnesses (and let's imagine the mother has a panic attack/resulting psyc illness)?

Would the intentional tort transfer to at least Person B or would it stop at Person A? Does the original assault transfer into battery for Person B and C (I don't think it can transfer into IIED for C's mother--but would there be a tort claim by the mother other than wrongful death)? If it did transfer, would the Eggshell Skull rule apply and make Tortfeasor A culpable for all the resulting harms?


Anyone?

BigZuck
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby BigZuck » Sun Dec 22, 2013 6:58 pm

If that were my fact pattern I would probably argue that transferred intent meant he torted everyone. I think the mom would be better off arguing NIED than IIED.

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Sun Dec 22, 2013 8:54 pm

BigZuck wrote:If that were my fact pattern I would probably argue that transferred intent meant he torted everyone. I think the mom would be better off arguing NIED than IIED.


So you can intentional tort directly & through transferred intent with the same act? I guess there isn't a proximate cause problem because it's an intentional tort (as opposed to negligence, where the mom's injury wouldn't have been reasonably foreseeable)? I also wonder where res ipsa and negligence come into the equation...and if the same act can both be an intentional tort through transferred intent and a viable negligence claim (though the P of course would have to pick one).

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Sun Dec 22, 2013 8:57 pm

I'm also wondering where exactly the Hand formula type of analysis applies? Does it apply or can it be used in an analysis of the doctrine of informed consent for med mal cases? How about products liability cases? It seems to have a very brought application as an analytical tool...maybe...

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Sun Dec 22, 2013 9:03 pm

Remember:

"Intentional" Tort means you "intended" to commit a Tort.
Don't get hung up on the intended victim v. intent to commit a tort.

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Mon Dec 23, 2013 10:08 am

2807 wrote:Remember:

"Intentional" Tort means you "intended" to commit a Tort.
Don't get hung up on the intended victim v. intent to commit a tort.


Thanks. If you commit an intentional tort, does this mean you are liable for all the victims (direct and indirect, foreseeable and unforeseeable (through transfer)?

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Mon Dec 23, 2013 10:16 am

ph14 wrote:
BigZuck wrote:Said this in the other thread and don't want to be annoying, but...

Peeps keep saying "intend" but as I understand it that doesn't neccessarily mean that you have the purpose of causing the touch, it could also mean that you know (or should know) that the touch is likely to occur with a high degree of probability.

Ex.: You shoot a gun into a crowd of people but are not actually trying to hit anyone. However, if you do hit someone the intent element is satisfied because you should know that by firing a gun into a crowd, that bullet is likely to hit (and harm) someone.

Anyway, checking in!


It's a long time since i've taken torts (3L), but if i'm recalling correctly that is correct. You can intend the result, or you are substantially certain it will occur, and both will count for purposes of "intent."

Moreover, there is another fork in the law (if your class covered this): the intent to cause the action versus the intent to cause the result (through the action). Some jurisdictions require only the former, whereas others require the latter.


I am looking at exam hypos and I am trying to understand the consequences of living in a regime of modified comparative fault and implied assumption of risk. Does this mean that if you are not negligent, you assume 100% of the risk of negligent torts resulting from recreational activities? How about torts caused by other people that "assumed the risk" but were more negligent than you? So confused!

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Mon Dec 23, 2013 1:27 pm

Lizard wrote:
2807 wrote:Remember:

"Intentional" Tort means you "intended" to commit a Tort.
Don't get hung up on the intended victim v. intent to commit a tort.


Thanks. If you commit an intentional tort, does this mean you are liable for all the victims (direct and indirect, foreseeable and unforeseeable (through transfer)?


Yes.
Don't worry, you'll know it when you see it.
If there is some third party interaction, you will make the appropriate argument.

Feels like you are blending a negligence and Intentional Tort analysis. Remember, if someone commits an intentional tort you have much different remedies than negligence, so you would not sue for "negligently" hitting me. You would sue for battery.

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Mon Dec 23, 2013 2:41 pm

2807 wrote:
Lizard wrote:
2807 wrote:Remember:

"Intentional" Tort means you "intended" to commit a Tort.
Don't get hung up on the intended victim v. intent to commit a tort.


Thanks. If you commit an intentional tort, does this mean you are liable for all the victims (direct and indirect, foreseeable and unforeseeable (through transfer)?


Yes.
Don't worry, you'll know it when you see it.
If there is some third party interaction, you will make the appropriate argument.

Feels like you are blending a negligence and Intentional Tort analysis. Remember, if someone commits an intentional tort you have much different remedies than negligence, so you would not sue for "negligently" hitting me. You would sue for battery.

Right, but let's say someone throws some loose bricks off a high story roof (which is undergoing construction at the time) with the intention of hitting person A (battery), but person A ducks into her garage in fear from assault and goes inside. Meanwhile, a brick smashes the head of person B who is looking the other way and waiting to cross the street. Person B is injured, but can't identify the tortfeaser. Am I right that Person B has no reason to know that the brick was deliberately thrown (transferred intent battery), as it is somewhat windy, but has a solid case for res ipsa if Person B can identify the party w/ exclusive control of the bricks?

I guess I do feel like I'm blending intentional torts and negligence because I feel like often times the same act can on its face make a prima facie case for both, depending on the explanations you give in your analysis, or the plausible assumptions you offer for omitted facts/mental states. Am I on the right track at all here?

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Mon Dec 23, 2013 6:32 pm

Lizard wrote:
2807 wrote:
Lizard wrote:
2807 wrote:Remember:

"Intentional" Tort means you "intended" to commit a Tort.
Don't get hung up on the intended victim v. intent to commit a tort.


Thanks. If you commit an intentional tort, does this mean you are liable for all the victims (direct and indirect, foreseeable and unforeseeable (through transfer)?


Yes.
Don't worry, you'll know it when you see it.
If there is some third party interaction, you will make the appropriate argument.

Feels like you are blending a negligence and Intentional Tort analysis. Remember, if someone commits an intentional tort you have much different remedies than negligence, so you would not sue for "negligently" hitting me. You would sue for battery.

Right, but let's say someone throws some loose bricks off a high story roof (which is undergoing construction at the time) with the intention of hitting person A (battery), but person A ducks into her garage in fear from assault and goes inside. Meanwhile, a brick smashes the head of person B who is looking the other way and waiting to cross the street. Person B is injured, but can't identify the tortfeaser. Am I right that Person B has no reason to know that the brick was deliberately thrown (transferred intent battery), as it is somewhat windy, but has a solid case for res ipsa if Person B can identify the party w/ exclusive control of the bricks?

I guess I do feel like I'm blending intentional torts and negligence because I feel like often times the same act can on its face make a prima facie case for both, depending on the explanations you give in your analysis, or the plausible assumptions you offer for omitted facts/mental states. Am I on the right track at all here?

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Mon Dec 23, 2013 8:03 pm

The contracting company may be on the hook for a res-ipsa argument...
BUT...
the intentional criminal act of the 3rd party brick-thrower would defeat that.

If there is no witness of the brick-thrower, then you would still have an uphill climb of res-ipsa based on wind launching the brick. It still has to be a reasonable argument.. Facts would matter (where and how was the brick stacked, did other things blow away, etc..) Wind that moves bricks, will move a lot of things....

I guess you do have an analysis to make there. Again, if no wits, then it will be a res-ipsa due to a brick from "brick work" on the roof But the facts may indicate that there was not negligence (= no res ipsa), and likely an unknown 3p suspect.

Bricks rarely fly without serious proof of wind power--and that would be in the breach analysis/knowledge of pending wind gusts. If the brick company knew of the wind, and did not stack the bricks accordingly, than you just have "negligence" not res-ipsa. Well, I guess you could argue both.

I think you are reaching. But, you are thinking deep. That is good, but can get you into trouble.
Here, facts will matter, and the analysis will need them.

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Mon Dec 23, 2013 9:34 pm

Premises Liability Questions:
If a business establishment has a sign saying "Restroom for Customers Only" is a non-customer a trespasser if she used the bathroom? How about if she appears to be leaving the establishment--has her entire stay there been a trespass, or only her time in the bathroom?

In a place of business open to the public (e.g. restaurant), is a person who violates the standards of conduct considered a trespasser (e.g. person without a shirt when no shirts sign is posted)? Does this person only become a trespasser if they are asked to leave, or is there some sort of implicit standard that the shopkeeper's rules operate like negligence per se?

Apparently I have a lot of studying to do on premises liability, eek

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Tue Dec 24, 2013 2:18 am

Lizard wrote:Premises Liability Questions:
If a business establishment has a sign saying "Restroom for Customers Only" is a non-customer a trespasser if she used the bathroom? How about if she appears to be leaving the establishment--has her entire stay there been a trespass, or only her time in the bathroom?

In a place of business open to the public (e.g. restaurant), is a person who violates the standards of conduct considered a trespasser (e.g. person without a shirt when no shirts sign is posted)? Does this person only become a trespasser if they are asked to leave, or is there some sort of implicit standard that the shopkeeper's rules operate like negligence per se?

Apparently I have a lot of studying to do on premises liability, eek


Ok, Q1: Yes, in theory--- she is a trespasser if she went in the bathroom and is not a customer BECAUSE: You can limit the scope of a invitee, and beyond that the person is: a trespasser.

However, if it is open to the public, then she would not be trespassing as she enters/exits the store. But, if she is not a customer and uses the bathroom only, you may have the trespass argument for her time in the bathroom.

However, you are really coming up with an odd example becasue you have a biz open to the public, with a restroom for customers only.
Your issue will be the definition of a "customer." It is likely that for a premise liability analysis: being open to the public will seriously limit the people you can weed out as "non customers." She can claim she was "browsing" or whatever... and therefore be a customer..

Facts would matter, and these facts may allow the analysis to show that she was in no way a customer, and therefore a tressapssor as she entered the restroom...


Q2: No. Premise liability is about the person's status as they enter the property and the owners associated duty. The shirt/shoes required stuff is not at issue. Asking a person to leave would be within the scope of the owners rights... and remember, the owner can limit the scope! So--- yes, trump card to the owner= you are a trespasser once the scope is limited to GET OUT.

(likewise, the police can be called and that person will be escorted out for that exact thing-- trespass) This is what gets people yanked out of bars, and clubs, and all that fun stuff. "We have the right to refuse service" = "we can turn you into a trespasser if we want to"


ALSO: Be careful of looking for answers the way you are. There are normally NOT answers, there is only ANALYSIS. You want the answer.... go ask a jury.

Don't fall into the analytical trap of thinking these things fit in a box and the answer pops out. It is just analysis, and the conclusion can go either way.

It is better to look at your facts and ask: Do these facts support a reasonable analysis/argument for ____________. Then use facts and law to make it happen. If you can't use facts and law....then you should not address the issue-- as there is none there.

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Wed Dec 25, 2013 12:17 am

Lizard wrote:Premises Liability Questions:
If a business establishment has a sign saying "Restroom for Customers Only" is a non-customer a trespasser if she used the bathroom? How about if she appears to be leaving the establishment--has her entire stay there been a trespass, or only her time in the bathroom?


So I'm confused about the analysis for this question. Let's say it's a restaurant with a sign saying Restroom for Customers Only. Does this mean the person is ONLY a trespasser in the restroom, but a licensee/invitee (depending on jurisdiction) in the rest of the restaurant?

What are the consequences if someone commits an intentional tort against them in the restroom vs. the rest of the restaurant? My guess is that for intentional torts, their trespasser status is irrelevant?

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2807
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Wed Dec 25, 2013 3:07 am

Lizard wrote:
Lizard wrote:Premises Liability Questions:
If a business establishment has a sign saying "Restroom for Customers Only" is a non-customer a trespasser if she used the bathroom? How about if she appears to be leaving the establishment--has her entire stay there been a trespass, or only her time in the bathroom?


So I'm confused about the analysis for this question. Let's say it's a restaurant with a sign saying Restroom for Customers Only. Does this mean the person is ONLY a trespasser in the restroom, but a licensee/invitee (depending on jurisdiction) in the rest of the restaurant?

What are the consequences if someone commits an intentional tort against them in the restroom vs. the rest of the restaurant? My guess is that for intentional torts, their trespasser status is irrelevant?


Q1: Yes, if you exceed the scope of your license or invite = you are a trespasser. This was actually tested on the CA bar not so long ago. (A pool party where the kids were told to go inside, pool closed now, and then a kid snuck back out and fell in the pool. He was a trespasser at that point)

Q2: Intentional tort against someone would just be the tort analysis, and the premise liability likely not come into play. Premise liability is only for static elements of the property, NOT for actions or activity on the property. (that can be a trick in the questions, so watch for that).

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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Lizard » Wed Dec 25, 2013 3:18 am

2807 wrote:
Lizard wrote:
Lizard wrote:Premises Liability Questions:
If a business establishment has a sign saying "Restroom for Customers Only" is a non-customer a trespasser if she used the bathroom? How about if she appears to be leaving the establishment--has her entire stay there been a trespass, or only her time in the bathroom?


So I'm confused about the analysis for this question. Let's say it's a restaurant with a sign saying Restroom for Customers Only. Does this mean the person is ONLY a trespasser in the restroom, but a licensee/invitee (depending on jurisdiction) in the rest of the restaurant?

What are the consequences if someone commits an intentional tort against them in the restroom vs. the rest of the restaurant? My guess is that for intentional torts, their trespasser status is irrelevant?


Q1: Yes, if you exceed the scope of your license or invite = you are a trespasser. This was actually tested on the CA bar not so long ago. (A pool party where the kids were told to go inside, pool closed now, and then a kid snuck back out and fell in the pool. He was a trespasser at that point)

Q2: Intentional tort against someone would just be the tort analysis, and the premise liability likely not come into play. Premise liability is only for static elements of the property, NOT for actions or activity on the property. (that can be a trick in the questions, so watch for that).


Q1: This means that the person would only be a trespasser in the bathroom, but once leaving the bathroom, they would be licensee/invitee in the rest of the establishment? After leaving the restroom, does that mean that the owner of the establishment would not have a cause of action against the trespasser? Trespassing=strict liability, does this mean that the owner could file a claim against the person for "trespassing" and using the bathroom? How about for property (toilet paper & wear and tear on bathroom--crazy and farfetched i know, but whatever)?




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