Torts question

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
perfunctory

Bronze
Posts: 280
Joined: Fri Oct 23, 2015 8:25 pm

Torts question

Postby perfunctory » Fri Dec 16, 2016 2:40 pm

If there's an off-duty police officer and he comes to help me and gets hurt while doing so and sues me, what do i argue to mitigate damages? rescue doctrine obvs doesn't apply b/c officer was off duty. or would an off-duty officer still be regarded as an on-duty officer?

do i argue that the police officer took an unreasonable implied assumption of risk? or that he was reckless? is there a difference between the two?

User avatar
EncyclopediaOrange

Bronze
Posts: 312
Joined: Fri Jan 15, 2016 12:30 am

Re: Torts question

Postby EncyclopediaOrange » Fri Dec 16, 2016 4:10 pm

Without more facts it's hard to say. Attacking proximate causation is an option.

timmyd

Bronze
Posts: 370
Joined: Sun Jul 14, 2013 8:50 pm

Re: Torts question

Postby timmyd » Fri Dec 16, 2016 5:16 pm

I mean, first off he would have to show you created some kind of unreasonable danger to begin with. If, for example, through no fault of your own, you were struck by a car and the officer--on duty or not--came to help, how would he have a cause of action against you?

If you were negligent and he comes to help and is hurt, there will be both proximate causation issues and comparative fault issues (assuming youre in a comparative fault state).

User avatar
perfunctory

Bronze
Posts: 280
Joined: Fri Oct 23, 2015 8:25 pm

Re: Torts question

Postby perfunctory » Fri Dec 16, 2016 6:52 pm

Question says car flipped and caught on fire after I dozed off or w/e. Officer was trying to help me, burned himself while doing so. Assume comparative fault jurisdiction. What would I try to argue to mitigate dmgs?

I think I would argue that the officer cannot recover under rescue doctrine. But if officer argues he was off duty, I would argue he took an unreasonable assumption of risk by not protecting hands with gloves or w/e. Shitty argument but still make it?

cavalier1138

Gold
Posts: 4954
Joined: Fri Mar 25, 2016 8:01 pm

Re: Torts question

Postby cavalier1138 » Fri Dec 16, 2016 8:22 pm

perfunctory wrote:Question says car flipped and caught on fire after I dozed off or w/e. Officer was trying to help me, burned himself while doing so. Assume comparative fault jurisdiction. What would I try to argue to mitigate dmgs?

I think I would argue that the officer cannot recover under rescue doctrine. But if officer argues he was off duty, I would argue he took an unreasonable assumption of risk by not protecting hands with gloves or w/e. Shitty argument but still make it?


You've got to include all the details, because that's what decides the case.

Under Wagner, "danger invites rescue", and as long as the rescuer took due care for himself, whoever negligently created the danger is liable for damages the rescuer suffers. Since he's off-duty, there's probably no fireman's rule, even if your jx supports it. So you have to argue over whether he was reckless in trying to save your life. And courts have been pretty lenient on rescuers because they're putting themselves in danger for another.

But in general, you can't just think of a hypo in the general terms you frame it in. The exact, specific details are what you need to be focusing on. Everyone knows the general principles of law. It's about applying them to that fact pattern.

User avatar
perfunctory

Bronze
Posts: 280
Joined: Fri Oct 23, 2015 8:25 pm

Re: Torts question

Postby perfunctory » Fri Dec 16, 2016 8:30 pm

cavalier1138 wrote:
perfunctory wrote:Question says car flipped and caught on fire after I dozed off or w/e. Officer was trying to help me, burned himself while doing so. Assume comparative fault jurisdiction. What would I try to argue to mitigate dmgs?

I think I would argue that the officer cannot recover under rescue doctrine. But if officer argues he was off duty, I would argue he took an unreasonable assumption of risk by not protecting hands with gloves or w/e. Shitty argument but still make it?


You've got to include all the details, because that's what decides the case.

Under Wagner, "danger invites rescue", and as long as the rescuer took due care for himself, whoever negligently created the danger is liable for damages the rescuer suffers. Since he's off-duty, there's probably no fireman's rule, even if your jx supports it. So you have to argue over whether he was reckless in trying to save your life. And courts have been pretty lenient on rescuers because they're putting themselves in danger for another.

But in general, you can't just think of a hypo in the general terms you frame it in. The exact, specific details are what you need to be focusing on. Everyone knows the general principles of law. It's about applying them to that fact pattern.


I understand what you mean. But yea, this is all there is to the hypo.

Are the terms reckless and unreasonable implied assumption of risk interchangeable in this scenario, or is it important that i make the distinction?

Also, is my argument - that the officer was unreasonable by not using anything to cover his hands/arms - a reasonable argument? I can't really imagine anyone srly saying this in court but this is all i can think of

cavalier1138

Gold
Posts: 4954
Joined: Fri Mar 25, 2016 8:01 pm

Re: Torts question

Postby cavalier1138 » Sat Dec 17, 2016 11:06 am

perfunctory wrote:
cavalier1138 wrote:
perfunctory wrote:Question says car flipped and caught on fire after I dozed off or w/e. Officer was trying to help me, burned himself while doing so. Assume comparative fault jurisdiction. What would I try to argue to mitigate dmgs?

I think I would argue that the officer cannot recover under rescue doctrine. But if officer argues he was off duty, I would argue he took an unreasonable assumption of risk by not protecting hands with gloves or w/e. Shitty argument but still make it?


You've got to include all the details, because that's what decides the case.

Under Wagner, "danger invites rescue", and as long as the rescuer took due care for himself, whoever negligently created the danger is liable for damages the rescuer suffers. Since he's off-duty, there's probably no fireman's rule, even if your jx supports it. So you have to argue over whether he was reckless in trying to save your life. And courts have been pretty lenient on rescuers because they're putting themselves in danger for another.

But in general, you can't just think of a hypo in the general terms you frame it in. The exact, specific details are what you need to be focusing on. Everyone knows the general principles of law. It's about applying them to that fact pattern.


I understand what you mean. But yea, this is all there is to the hypo.

Are the terms reckless and unreasonable implied assumption of risk interchangeable in this scenario, or is it important that i make the distinction?

Also, is my argument - that the officer was unreasonable by not using anything to cover his hands/arms - a reasonable argument? I can't really imagine anyone srly saying this in court but this is all i can think of


I'd make the distinction. Rescuers don't tend to be judged under the same assumption of the risk standards as non-heroic people. But yes, your best argument based on the given scenario is that the officer was reckless in reaching into a burning car with bare hands. Since the defendant is the one who was saved by this action, I doubt a court would look kindly on that argument, but it's the only valid one in a case of rescue.

User avatar
bretby

Bronze
Posts: 402
Joined: Thu Oct 30, 2014 5:15 pm

Re: Torts question

Postby bretby » Sat Dec 17, 2016 11:53 pm

perfunctory wrote:
cavalier1138 wrote:
perfunctory wrote:Question says car flipped and caught on fire after I dozed off or w/e. Officer was trying to help me, burned himself while doing so. Assume comparative fault jurisdiction. What would I try to argue to mitigate dmgs?

I think I would argue that the officer cannot recover under rescue doctrine. But if officer argues he was off duty, I would argue he took an unreasonable assumption of risk by not protecting hands with gloves or w/e. Shitty argument but still make it?


You've got to include all the details, because that's what decides the case.

Under Wagner, "danger invites rescue", and as long as the rescuer took due care for himself, whoever negligently created the danger is liable for damages the rescuer suffers. Since he's off-duty, there's probably no fireman's rule, even if your jx supports it. So you have to argue over whether he was reckless in trying to save your life. And courts have been pretty lenient on rescuers because they're putting themselves in danger for another.

But in general, you can't just think of a hypo in the general terms you frame it in. The exact, specific details are what you need to be focusing on. Everyone knows the general principles of law. It's about applying them to that fact pattern.


I understand what you mean. But yea, this is all there is to the hypo.

Are the terms reckless and unreasonable implied assumption of risk interchangeable in this scenario, or is it important that i make the distinction?

Also, is my argument - that the officer was unreasonable by not using anything to cover his hands/arms - a reasonable argument? I can't really imagine anyone srly saying this in court but this is all i can think of


I would use Stockburger and as for damages would make an argument that as a PO he was a professional and so should be held to higher standard of care than a non-professional. The gloves argument seems far-fetched.



Return to “Forum for Law School Students�

Who is online

Users browsing this forum: No registered users and 7 guests