July 2015 California Bar Exam

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robinhoodOO
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Re: July 2015 California Bar Exam

Postby robinhoodOO » Tue Jul 21, 2015 7:59 pm

gaagoots wrote:http://whatthebarexam.tumblr.com

Best Tumblr account re: bar studies. If you need humor only someone whose been through it understands.

Loved the reference to the bar studies wardrobe hahaha


You shall not pass!!!!!!!!!!!!!!!!

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Tue Jul 21, 2015 10:02 pm

Can someone set up a strict liability essay answer, please?

Specifically, I'm trying to figure out where and what all the elements are. Namely: causation.

Example:

Let's say we have a product liability case, with a manuf defect, inadequate warning, and design defect.

Is this how the outline would work?

I. Strict Liability
1) activity or condition requires that there is an absolute duty of care
2) causation (actual/proximate)
3) damages to P, P's property
4) DO I NEED TO MENTION BREACH?!
IA. Products Liability
1) D is a merchant
2) product is defective
3) product left D's control unaltered
4) P used the products in a foreseeable manner
IA(1). Manuf Defect
IA(2). Design Defect
IA(3). Inadequate warning

II. Negligent Products Liability
1) duty of care
2) breach of duty
3) causation
4) damages


I can't tell if I need to discuss strict liability, or if I can jump into products liability immediately (or wild animal, ultra hazardous activity). Obviously, the negligent products liability portion would stay separate.
Last edited by redblueyellow on Tue Jul 21, 2015 10:14 pm, edited 1 time in total.

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brotherdarkness
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Re: July 2015 California Bar Exam

Postby brotherdarkness » Tue Jul 21, 2015 10:11 pm

redblueyellow wrote:Can someone set up a strict liability essay answer, please?

Specifically, I'm trying to figure out where and what all the elements are. Namely: causation.

Example:

Let's say we have a product liability case, with a manuf defect, inadequate warning, and design defect.

Is this how the outline would work?

I. Strict Liability
1) activity or condition requires that there is an absolute duty of care
2) causation (actual/proximate)
3) damages to P, P's property
IA. Products Liability
1) D is a merchant
2) product is defective
3) product left D's control unaltered
4) P used the products in a foreseeable manner
IA(1). Manuf Defect
IA(2). Design Defect
IA(3). Inadequate warning

II. Negligent Products Liability
1) duty of care
2) breach of duty
3) causation
4) damages


I can't tell if I need to discuss strict liability, or if I can jump into products liability immediately (or wild animal, ultra hazardous activity). Obviously, the negligent products liability portion would stay separate.


What do you mean by skipping the discussion of strict liability and jumping straight into products/animal/ultra-hazardous? All of those can be strict liability things, so a brief discussion of strict liability (i.e., it does away with P's need to establish duty and breach, but P must still prove causation and damages) seems warranted.

I'd probably write a brief paragraph discussing strict liability and how it alters the burden of proof, and then I'd start IRACing the actual issue at hand (i.e., the issue is D's liability for the product; the rule is strict liability if...; D did such and such and is therefore fucked under a strict liability theory; P will prevail on a claim of strict products liability).

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Tue Jul 21, 2015 10:19 pm

brotherdarkness wrote:What do you mean by skipping the discussion of strict liability and jumping straight into products/animal/ultra-hazardous? All of those can be strict liability things, so a brief discussion of strict liability (i.e., it does away with P's need to establish duty and breach, but P must still prove causation and damages) seems warranted.

I'd probably write a brief paragraph discussing strict liability and how it alters the burden of proof, and then I'd start IRACing the actual issue at hand (i.e., the issue is D's liability for the product; the rule is strict liability if...; D did such and such and is therefore fucked under a strict liability theory; P will prevail on a claim of strict products liability).


Sure, I can explain.

So my commercial outlines have what I wrote above for strict liability (duty, causation, damages) as the elements for strict liability.

Then it goes into the three general types of SL: animal, ultra-hazardous activity, products.

Under products, it goes into design, manuf, and inadequate warning.

If the prompt is about a defective coffee lid, for instance, and I'm arguing design defect, I wanted to know if I can skip mentioning anything about strict liability and its 3 elements (duty, causation, damages), and start IRAC'ing the design defect immediately. In other words, if I were writing on the essay, my first issue would be something like:

"Design Defects - Products Liability
[rule]
[analysis]
[therefore, there was a design defect]"

OR, assuming I read your post correctly, do I need to go through SL, explain the three elements (duty, causation, damages), then move on to products liability (elements: D is a merchant, product is defective, was not altered when it left D's control, and P used products in a foreseeable manner), and then to design defects (design defects)?

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Re: July 2015 California Bar Exam

Postby redblueyellow » Tue Jul 21, 2015 10:20 pm

brotherdarkness wrote:What do you mean by skipping the discussion of strict liability and jumping straight into products/animal/ultra-hazardous? All of those can be strict liability things, so a brief discussion of strict liability (i.e., it does away with P's need to establish duty and breach, but P must still prove causation and damages) seems warranted.


Hmm, my outline says that I still need to discuss duty of care. Not true for strict liability?

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Re: July 2015 California Bar Exam

Postby redblueyellow » Tue Jul 21, 2015 10:22 pm

Another way of analyzing my question is whether products liability is a subsection of strict liability or if a new thing altogether? My confusion stems from how Answer B to Feb 2013 Q4 is formatted.

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Tue Jul 21, 2015 10:26 pm

redblueyellow wrote:
brotherdarkness wrote:What do you mean by skipping the discussion of strict liability and jumping straight into products/animal/ultra-hazardous? All of those can be strict liability things, so a brief discussion of strict liability (i.e., it does away with P's need to establish duty and breach, but P must still prove causation and damages) seems warranted.


Hmm, my outline says that I still need to discuss duty of care. Not true for strict liability?

The duty of care for strict liability is strict liability. The "breach" portion you'd discuss for negligence just comes down to the four factors you listed. So they are strictly liable if they are a manufacturer, product was defective, not altered, foreseeable use. Then you look at causation and damages.

Nothing wrong with starting with the general explanation of SL and then going into the specifics or just going right in to the duty of absolute liability. I'd just go with whatever ends up causing you to write more.

redblueyellow wrote:Another way of analyzing my question is whether products liability is a subsection of strict liability or if a new thing altogether? My confusion stems from how Answer B to Feb 2013 Q4 is formatted.

Products Liability is a subsection of strict liability. Along with wild animals and inherently dangerous activities like hauling nuclear waste.

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brotherdarkness
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Re: July 2015 California Bar Exam

Postby brotherdarkness » Tue Jul 21, 2015 10:26 pm

redblueyellow wrote:
brotherdarkness wrote:What do you mean by skipping the discussion of strict liability and jumping straight into products/animal/ultra-hazardous? All of those can be strict liability things, so a brief discussion of strict liability (i.e., it does away with P's need to establish duty and breach, but P must still prove causation and damages) seems warranted.

I'd probably write a brief paragraph discussing strict liability and how it alters the burden of proof, and then I'd start IRACing the actual issue at hand (i.e., the issue is D's liability for the product; the rule is strict liability if...; D did such and such and is therefore fucked under a strict liability theory; P will prevail on a claim of strict products liability).


Sure, I can explain.

So my commercial outlines have what I wrote above for strict liability (duty, causation, damages) as the elements for strict liability.

Then it goes into the three general types of SL: animal, ultra-hazardous activity, products.

Under products, it goes into design, manuf, and inadequate warning.

If the prompt is about a defective coffee lid, for instance, and I'm arguing design defect, I wanted to know if I can skip mentioning anything about strict liability and its 3 elements (duty, causation, damages), and start IRAC'ing the design defect immediately. In other words, if I were writing on the essay, my first issue would be something like:

"Design Defects - Products Liability
[rule]
[analysis]
[therefore, there was a design defect]"

OR, assuming I read your post correctly, do I need to go through SL, explain the three elements (duty, causation, damages), then move on to products liability (elements: D is a merchant, product is defective, was not altered when it left D's control, and P used products in a foreseeable manner), and then to design defects (design defects)?


Hm, well I assume that either way is fine so long as you make sure the grader knows that you understand what strict liability does (eliminates the burden of showing duty and breach but has no effect on causation and damages).

I just pulled Answer B to Feb 2013 Q4 and that organization does look a bit strange, but clearly the Bar liked it. Strict liability is the umbrella, and only three things (for our purposes) fall within it: (1) products; (2) wild animals; (3) ultra-hazardous activities. They're not totally different things so much as they are categories under a main heading, if that makes sense.

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Re: July 2015 California Bar Exam

Postby BuenAbogado » Tue Jul 21, 2015 11:06 pm

brotherdarkness wrote:
redblueyellow wrote:
brotherdarkness wrote:What do you mean by skipping the discussion of strict liability and jumping straight into products/animal/ultra-hazardous? All of those can be strict liability things, so a brief discussion of strict liability (i.e., it does away with P's need to establish duty and breach, but P must still prove causation and damages) seems warranted.

I'd probably write a brief paragraph discussing strict liability and how it alters the burden of proof, and then I'd start IRACing the actual issue at hand (i.e., the issue is D's liability for the product; the rule is strict liability if...; D did such and such and is therefore fucked under a strict liability theory; P will prevail on a claim of strict products liability).


Sure, I can explain.

So my commercial outlines have what I wrote above for strict liability (duty, causation, damages) as the elements for strict liability.

Then it goes into the three general types of SL: animal, ultra-hazardous activity, products.

Under products, it goes into design, manuf, and inadequate warning.

If the prompt is about a defective coffee lid, for instance, and I'm arguing design defect, I wanted to know if I can skip mentioning anything about strict liability and its 3 elements (duty, causation, damages), and start IRAC'ing the design defect immediately. In other words, if I were writing on the essay, my first issue would be something like:

"Design Defects - Products Liability
[rule]
[analysis]
[therefore, there was a design defect]"

OR, assuming I read your post correctly, do I need to go through SL, explain the three elements (duty, causation, damages), then move on to products liability (elements: D is a merchant, product is defective, was not altered when it left D's control, and P used products in a foreseeable manner), and then to design defects (design defects)?


Hm, well I assume that either way is fine so long as you make sure the grader knows that you understand what strict liability does (eliminates the burden of showing duty and breach but has no effect on causation and damages).

I just pulled Answer B to Feb 2013 Q4 and that organization does look a bit strange, but clearly the Bar liked it. Strict liability is the umbrella, and only three things (for our purposes) fall within it: (1) products; (2) wild animals; (3) ultra-hazardous activities. They're not totally different things so much as they are categories under a main heading, if that makes sense.



I disagree. I think that P must still prove Duty and Breach. A. The manufacturer had a duty to supply goods free from unreasonable defects and B. The manufacturer breached his duty by supplying defective goods C. The goods were defective because (Design defect, manufacturing defect, etc.) D. Causation E. Damages

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brotherdarkness
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Re: July 2015 California Bar Exam

Postby brotherdarkness » Tue Jul 21, 2015 11:08 pm

Well, if you have strict liability, the duty standard goes from "reasonably prudent person" (or whatever variation, depending on facts) to "duty to not harm." Because P is suing D, I think it's fair to assume the duty has been breached. Thus, in strict liability, I assume duty and breach are satisfied automatically (because no amount of due care will save D), and thus all P has to do is show causation and damages.

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Tue Jul 21, 2015 11:11 pm

BuenAbogado wrote:I disagree. I think that P must still prove Duty and Breach. A. The manufacturer had a duty to supply goods free from unreasonable defects and B. The manufacturer breached his duty by supplying defective goods C. The goods were defective because (Design defect, manufacturing defect, etc.) D. Causation E. Damages

You're really just arguing semantics, but bring up breach in the context of strict liability at your own peril.

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Re: July 2015 California Bar Exam

Postby 2807 » Tue Jul 21, 2015 11:27 pm

redblueyellow wrote:
brotherdarkness wrote:What do you mean by skipping the discussion of strict liability and jumping straight into products/animal/ultra-hazardous? All of those can be strict liability things, so a brief discussion of strict liability (i.e., it does away with P's need to establish duty and breach, but P must still prove causation and damages) seems warranted.

I'd probably write a brief paragraph discussing strict liability and how it alters the burden of proof, and then I'd start IRACing the actual issue at hand (i.e., the issue is D's liability for the product; the rule is strict liability if...; D did such and such and is therefore fucked under a strict liability theory; P will prevail on a claim of strict products liability).


Sure, I can explain.

So my commercial outlines have what I wrote above for strict liability (duty, causation, damages) as the elements for strict liability.

Then it goes into the three general types of SL: animal, ultra-hazardous activity, products.

Under products, it goes into design, manuf, and inadequate warning.

If the prompt is about a defective coffee lid, for instance, and I'm arguing design defect, I wanted to know if I can skip mentioning anything about strict liability and its 3 elements (duty, causation, damages), and start IRAC'ing the design defect immediately. In other words, if I were writing on the essay, my first issue would be something like:

"Design Defects - Products Liability <------ THIS IS A "TOPIC" ... NOT A PRECISE LEGAL ISSUE
[rule]
[analysis]
[therefore, there was a design defect]"

OR, assuming I read your post correctly, do I need to go through SL, explain the three elements (duty, causation, damages), then move on to products liability (elements: D is a merchant, product is defective, was not altered when it left D's control, and P used products in a foreseeable manner), and then to design defects (design defects)?


This exam is about ISSUE SPOTTING, so you may want to refine your PRECISE LEGAL ISSUE statement.
Then... the rule
Then... apply the few facts that matter
Then... a conclusion consistent with that application.

Ok, you may know this, but your example made me nervous...
It is THAT EXACT problem of confusing "Topic" with "Legal Issue" that causes many people to fail.

Be precise.

Onward !

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Re: July 2015 California Bar Exam

Postby BuenAbogado » Tue Jul 21, 2015 11:51 pm

Tiago Splitter wrote:
BuenAbogado wrote:I disagree. I think that P must still prove Duty and Breach. A. The manufacturer had a duty to supply goods free from unreasonable defects and B. The manufacturer breached his duty by supplying defective goods C. The goods were defective because (Design defect, manufacturing defect, etc.) D. Causation E. Damages

You're really just arguing semantics, but bring up breach in the context of strict liability at your own peril.


I'm not sure how I'm arguing semantics.

If you were suing someone under strict liability and you didn't include duty and breach, you would fail to state a claim.

Strict liability has the same elements as negligence, it merely holds the defendant to higher standard of care.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 12:02 am

2807 wrote:[
This exam is about ISSUE SPOTTING, so you may want to refine your PRECISE LEGAL ISSUE statement.
Then... the rule
Then... apply the few facts that matter
Then... a conclusion consistent with that application.

Ok, you may know this, but your example made me nervous...
It is THAT EXACT problem of confusing "Topic" with "Legal Issue" that causes many people to fail.

Be precise.

Onward !


Do you mind elaborating, please?

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Re: July 2015 California Bar Exam

Postby brotherdarkness » Wed Jul 22, 2015 12:13 am

BuenAbogado wrote:
Tiago Splitter wrote:
BuenAbogado wrote:I disagree. I think that P must still prove Duty and Breach. A. The manufacturer had a duty to supply goods free from unreasonable defects and B. The manufacturer breached his duty by supplying defective goods C. The goods were defective because (Design defect, manufacturing defect, etc.) D. Causation E. Damages

You're really just arguing semantics, but bring up breach in the context of strict liability at your own peril.


I'm not sure how I'm arguing semantics.

If you were suing someone under strict liability and you didn't include duty and breach, you would fail to state a claim.

Strict liability has the same elements as negligence, it merely holds the defendant to higher standard of care.


No matter what standard of care D uses, if it's a strict liability claim and P shows causation and harm, D is done here. P doesn't need to show a duty or a breach -- strict liability nixes those elements. That's my understanding, at least.

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Re: July 2015 California Bar Exam

Postby 2807 » Wed Jul 22, 2015 12:14 am

redblueyellow wrote:
2807 wrote:[
This exam is about ISSUE SPOTTING, so you may want to refine your PRECISE LEGAL ISSUE statement.
Then... the rule
Then... apply the few facts that matter
Then... a conclusion consistent with that application.

Ok, you may know this, but your example made me nervous...
It is THAT EXACT problem of confusing "Topic" with "Legal Issue" that causes many people to fail.

Be precise.

Onward !


Do you mind elaborating, please?


Done this many times..
Start here on page 3... read a bit..and see if this helps clarify
viewtopic.php?f=41&t=220409

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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Wed Jul 22, 2015 12:24 am

BuenAbogado wrote:
Tiago Splitter wrote:
BuenAbogado wrote:I disagree. I think that P must still prove Duty and Breach. A. The manufacturer had a duty to supply goods free from unreasonable defects and B. The manufacturer breached his duty by supplying defective goods C. The goods were defective because (Design defect, manufacturing defect, etc.) D. Causation E. Damages

You're really just arguing semantics, but bring up breach in the context of strict liability at your own peril.


I'm not sure how I'm arguing semantics.

If you were suing someone under strict liability and you didn't include duty and breach, you would fail to state a claim.

Strict liability has the same elements as negligence, it merely holds the defendant to higher standard of care.

I certainly won't be discussing whether the defendant breached its duty of strict liability on the bar exam, but you what you gotta do.

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Re: July 2015 California Bar Exam

Postby brotherdarkness » Wed Jul 22, 2015 12:36 am

I'm reading from the long outline right now b/c I want to make sure we're all on the same page re strict liability.

"To establish a prima facie case for strict liability, the following elements must be shown:

(1) The nature of the defendant's activity imposes an absolute duty to make safe;

(2) The dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury; and

(3) The plaintiff suffered damage to person or property."

Thus, strict liability effectively eliminates the duty element (b/c now it's an absolute duty and no amount due care will exculpate) and, because P is suing D, that duty has obviously been breached. P is left with proving causation and damages.

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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Wed Jul 22, 2015 12:47 am

brotherdarkness wrote:Thus, strict liability effectively eliminates the duty element (b/c now it's an absolute duty and no amount due care will exculpate) and, because P is suing D, that duty has obviously been breached. P is left with proving causation and damages.

I think P also needs to show we're in strict liability land. But once we're there it's on to causation.

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Re: July 2015 California Bar Exam

Postby BuenAbogado » Wed Jul 22, 2015 1:29 am

Tiago Splitter wrote:
BuenAbogado wrote:
Tiago Splitter wrote:
BuenAbogado wrote:I disagree. I think that P must still prove Duty and Breach. A. The manufacturer had a duty to supply goods free from unreasonable defects and B. The manufacturer breached his duty by supplying defective goods C. The goods were defective because (Design defect, manufacturing defect, etc.) D. Causation E. Damages

You're really just arguing semantics, but bring up breach in the context of strict liability at your own peril.


I'm not sure how I'm arguing semantics.

If you were suing someone under strict liability and you didn't include duty and breach, you would fail to state a claim.

Strict liability has the same elements as negligence, it merely holds the defendant to higher standard of care.

I certainly won't be discussing whether the defendant breached its duty of strict liability on the bar exam, but you what you gotta do.


I won't be arguing that straw man either.

What I will be arguing is that the defendant had a 1. duty to provide a product that was free from unreasonable defects and he 2. breached it by selling a defective product which was the 3. actual and proximate cause of my 4. damages.

National Paralegal College breaks it down pretty well:

http://nationalparalegal.edu/public_doc ... bility.asp

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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 1:52 am

2807 wrote:
redblueyellow wrote:
2807 wrote:[
This exam is about ISSUE SPOTTING, so you may want to refine your PRECISE LEGAL ISSUE statement.
Then... the rule
Then... apply the few facts that matter
Then... a conclusion consistent with that application.

Ok, you may know this, but your example made me nervous...
It is THAT EXACT problem of confusing "Topic" with "Legal Issue" that causes many people to fail.

Be precise.

Onward !


Do you mind elaborating, please?


Done this many times..
Start here on page 3... read a bit..and see if this helps clarify
viewtopic.php?f=41&t=220409


TOPIC
* "Topic Sentence" as road map (if worthy..)

Then--- ** Small BLL Blurbs that universally apply to Topic/issues
Underline KEY WORDS to add IMPACT

(START IRAC HERE)
1. WHETHER.....(ISSUE stated as LEGAL ISSUE)

RULE
FACT
also, FACT
additionally, FACT

Conclusion: Therefore, BECAUSE____________


2. Whether.... (Issue, stated as LEGAL ISSUE)

RULE
FACT
also, FACT
additionally, FACT

Conclusion: Therefore, BECAUSE _______________

3. Repeat... all issues under THIS TOPIC.

Roger that. I'll report back with an essay for review.

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Wed Jul 22, 2015 2:01 am

National Paralegal College wrote:David stores highly flammable propane tanks on his property. Lightening strikes, setting the tanks on fire. The fire goes on to damage Saul's property. Although lightening strikes are an act of God and are not in any way David's fault, he is liable under the rules of strict liability simply because Saul suffered harm.

How would Dave (let's call him Mr. Light E. Ning) have avoided breach here? To me breach implies that there was some way D could have avoided liability if he had taken better precautions, but strict liability is all about how there are no better precautions D could have taken.

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Re: July 2015 California Bar Exam

Postby brotherdarkness » Wed Jul 22, 2015 2:08 am

Tiago Splitter wrote:
National Paralegal College wrote:David stores highly flammable propane tanks on his property. Lightening strikes, setting the tanks on fire. The fire goes on to damage Saul's property. Although lightening strikes are an act of God and are not in any way David's fault, he is liable under the rules of strict liability simply because Saul suffered harm.

How would Dave (let's call him Mr. Light E. Ning) have avoided breach here? To me breach implies that there was some way D could have avoided liability if he had taken better precautions, but strict liability is all about how there are no better precautions D could have taken.


Presumably by not keeping ultra-hazardous propane tanks on his property. I see where the other guy is coming from -- the duty is to not harm someone with the ultra-hazardous stuff and the breach is that he did harm someone -- but it seems strange to explain it that way.

I would write that D engaged in ultra-hazardous activities that subject him to strict liability. Because P was harmed by the ultra-hazardous thing, D may be held strictly liable. P must show causation -- both legal and proximate -- and establish damages.

Generally, in these questions, the only hangup is with proximate cause -- ie, was the harm the sort that is reasonably foreseeable from conducting that ultra-hazardous activity. So if it's a wild animal case and the guy got hurt running away from the animal rather than by being bitten by the animal, I'd throw in a sentence or two explaining how running away from the animal is foreseeable and therefore proximate cause is satisfied.

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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Wed Jul 22, 2015 2:19 am

I see where he's coming from too and when we look at design defects or failures to warn under products liability the line gets real hazy. But for something like Dave Lightening you'd have to argue that owning those highly flammable tanks and leaving them sitting there peacefully for months or years was the breach. Might as well skip that bizarre discussion and just say strict liability is in order and the inherently dangerous item proximately and but-forly caused the injury.

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Re: July 2015 California Bar Exam

Postby BuenAbogado » Wed Jul 22, 2015 2:28 am

Tiago Splitter wrote:
National Paralegal College wrote:David stores highly flammable propane tanks on his property. Lightening strikes, setting the tanks on fire. The fire goes on to damage Saul's property. Although lightening strikes are an act of God and are not in any way David's fault, he is liable under the rules of strict liability simply because Saul suffered harm.

How would Dave (let's call him Mr. Light E. Ning) have avoided breach here? To me breach implies that there was some way D could have avoided liability if he had taken better precautions, but strict liability is all about how there are no better precautions D could have taken.


Re: storing explosives

Duty - Make sure they don't hurt anyone
Breach - They hurt someone.
Causation - A&P
Damages - ...

Re: selling defective goods

Duty -Don't sell defective goods
Breach - Sold defective goods
Causation - A&P
Damages - ...




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