Torts Question- Breach

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cnk1220

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Torts Question- Breach

Postby cnk1220 » Fri Feb 10, 2017 2:45 pm

I absolutely hate these breach and/or causation questions that come down to 2 possible answers.

If anyone has barbri this is Mixed Set 4, Q20. I really don't understand barbri's explanation for this.

Can someone please reassure me the real MBE is not going to be this stupid based on what the fuck the NCBE was feeling when they wrote the exam? Some of these Qs seem outrageously stupid and vague based on how you analyze the facts and the poor word choices.

Company owns fleet of buses. Children play there a lot (because they're also stupid apparently). Area was fenced in by a 5 foot high chain link fence but company aware children from neighborhood climb fence and play among junked buses and company has employees chase away children during the day. One child who had been chased away from the lot before climbed onto roof of bus and slipped on front bumper on a Saturday when the garage was closed. Child broke arm through windshield of bus and child brings suit.

Which of following most aids child in showing company breached duty?

C. Company could have eliminated risk of injury without unduly interfering with its normal operations.

D. Company improperly maintained fence that surrounded the lot with abandoned buses.


Um, I thought it was D (not that I thought C was wrong either honestly I think they're both equally valid arguments and it's impossible to choose which is better because they both to speak to breach but I thought D was more specific so it was better).

D because that would go to breach- you improperly maintained the lot that apparently is such an attractive nuisance to these stupid kids who have no where else to play but on abandoned bus lots and company is on notice b/c facts say they were aware the children climbed the fence a lot.

My thinking: if you fix the fence (because you should have because you were aware) then the stupid kids can't get to the buses.

Barbri says C because apparently the fence isn't an issue? How is the fence NOT an issue if you can't get to the buses without hopping the stupid fence and the company was on notice their fence was clearly not a "good enough fence" to keep the children away?

Gunner19

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Re: Torts Question- Breach

Postby Gunner19 » Fri Feb 10, 2017 3:12 pm

Not 100% sure on this, but I believe it may be because the company has no duty to maintain such a fence, but they would have a duty to eliminate unreasonable risks when they are on notice of minor trespassers. Typically theres no duty to trespassers, but when a landowner is on notice that there are minors trespassing on the premises they have a duty to eliminate anything which poses an unreasonable risk of harm to children. I believe this is covered by R2D Torts 339, and it also considers the utility of the condition to the owner as compared to the risk it presents, which is where the part about eliminating the risk without interfering comes in (basic cost/benefit analysis to determine reasonableness)

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cnk1220

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Re: Torts Question- Breach

Postby cnk1220 » Fri Feb 10, 2017 4:48 pm

Well barbri's super thorough not confusing explanation also says "due care requires installing a higher fence or more diligent patrol of the yard" which LOL because that's exactly what I thought...but also LOL because that actually contradicts the phrase "maintenance of the fence is not an issue." which is the explanation of why D is apparently wrong. (also in the barbri answer)...

Apparently...this time we needed to choose the breach of duty in the broadest terms not the most specific. I'm sure the next time the best answer will be in more specific terms rather than the broadest terms...which is why I'm fed up with the MBE. :evil:

lawhopeful100

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Re: Torts Question- Breach

Postby lawhopeful100 » Fri Feb 10, 2017 5:28 pm

I think this question is testing the attractive nuisance doctrine of which part of is "the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved." Thus, the fact that they could have eliminated the risk without interfering with normal business operations addresses the burden of eliminating the danger compared to the risk.
What Gunner19 was saying above. It addresses the cost/risk analysis.

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pancakes3

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Re: Torts Question- Breach

Postby pancakes3 » Fri Feb 10, 2017 5:35 pm

i think the answer's pretty dumb and unsatisfying.

it's not an issue with the 5 foot tall fence being properly maintained - it's a perfectly fine 5 foot tall fence. the breach was in not putting in a 10 foot tall fence (without unduly interfering with its normal operations).

at least that was my takeaway when i read the problem. i saw "D" and thought - "well, nothing in the fact pattern said anything about the fence being improperly maintained. it's just not sufficient."

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cnk1220

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Re: Torts Question- Breach

Postby cnk1220 » Fri Feb 10, 2017 5:52 pm

Thank you. This is actually a much better explanation than barbri's stupid fence analysis.
Moral of the story: attractive nuisance ==> pick the answer discussing risk/cost benefit analysis. :lol:

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Re: Torts Question- Breach

Postby YalteseFalcon » Sat Feb 11, 2017 2:31 pm

I missed this question too, for the same reason.

These are frustrating because they really feel so arguable. And I can clearly see the issue being tested and recall the relevant rule: landowner has a duty to avoid reasonably foreseeable risk of harm to known trespassing children caused by artificial conditions. I guess this isn't a whole lot different than duty to known trespassers who aren't children, with the an expanded scope to include children who may not have already come on the land, but who foreseeably could.

So, this duty can be satisfied by eliminating the dangerous artificial condition if no undue burden, or (so I thought) by not being negligent in maintenance of protections around the property. Now that I type it, getting rid of the dangerous condition feels more obvious, but I still feel like there would be liability under this theory for a LO with a dangerous artificial condition who has a negligently maintained fence that doesn't keep foreseeable child trespassers out.

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cnk1220

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Re: Torts Question- Breach

Postby cnk1220 » Sat Feb 11, 2017 3:08 pm

YalteseFalcon wrote:I missed this question too, for the same reason.

These are frustrating because they really feel so arguable. And I can clearly see the issue being tested and recall the relevant rule: landowner has a duty to avoid reasonably foreseeable risk of harm to known trespassing children caused by artificial conditions. I guess this isn't a whole lot different than duty to known trespassers who aren't children, with the an expanded scope to include children who may not have already come on the land, but who foreseeably could.

So, this duty can be satisfied by eliminating the dangerous artificial condition if no undue burden, or (so I thought) by not being negligent in maintenance of protections around the property. Now that I type it, getting rid of the dangerous condition feels more obvious, but I still feel like there would be liability under this theory for a LO with a dangerous artificial condition who has a negligently maintained fence that doesn't keep foreseeable child trespassers out.



I hate multiple choice for this very reason, also idk why barbri likes to put confusingly worded answers, are you trying to trick me and make me read into what you were thinking when you drafted the Q or test my knowledge?

The exam would still be equally hard to anyone who didn't study the rules and exceptions...but I get annoyed when their wording makes me second guess myself on the stuff I know well.
I'm looking at you Mixed Set 5 --> 803(3) is called the "state of mind exception to hearsay" I've never heard it called by "declaration of intent to do a future act." That sounds like an ass backwords made up rule especially being that the choice below was definitely a made up evidence rule. Evidence was one of my A classes that I loved and still love so don't take that away from me barbri :!:

Edit: another evidence one I got right but was annoyed about: "no because it's an opinion." Well that's vague because opinions are allowed if it's your own...maybe say no because it's an improper opinion, or no because lack of personal knowledge. But like since opinions are allowed I almost wanted to second guess myself on that because of barbri's stupid wording... :shock:
I half expected to get to the explanation and they be like "no sorry you got that wrong because we purposely put something that would be inadmissible but now it gets to be admissible for some other reason because the reasoning we tied to it being inadmissible is too broad, gotcha hahahaha!!!"



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