OFFICIAL 1L Exam Prep & Motivation Thread (CSWS) Forum

[laxbrah420]

It just seems odd to me that you could argue that an invitee may be said to have impliedly assumed a risk that they were unfamiliar with and then not even mention the problem of the invitor not giving warning...I'd think of a hibachi restaurant not giving any warnings like a baseball stadium failing to post foul ball warnings.

[laxbrah420]

strict liability on restaurant owner?

For product defects?

I was thinking Rylands/inherently dangerous activities.

Guess it's a bit of a stretch though to compare the risk level to a nuclear power plant.

ETA:

"Domesticated animals that have a known propensity for dangerous behavior" qualifies as an inherently dangerous activity. I wonder if you can classify the cook as a domesticated animal?

Maybe you classify the cook as an explosive? ...are you serious?

[minnbills]

I think stretching products liability is the best answer. But that's just me

[Birdnals]

Maybe you classify the cook as an explosive? ...are you serious?

If the guy is as bad at cooking the food as he is at throwing it around, the diarrhea caused by undercooked chicken may be explosive.

[Blumpbeef]

...are you serious?

lol

no... FTR

[laxbrah420]

Maybe you classify the cook as an explosive? ...are you serious?

If the guy is as bad at cooking the food as he is at throwing it around, the diarrhea caused by undercooked chicken may be explosive.

Producing explosive diarrhea I believe should fall under the restatement's definition of abnormally dangerous...
Does it have a high degree of risk? Ya duh, people could walk in the bathroom at anytime
Harm likely to be great? Yea, shit's fucking putrid..
Reduce the risk with reasonable care? Fuck no --some bathrooms don't have locks
Activity is not common custom? People only get that like every other year
Value of the activity to the community? Of course not

[franklyscarlet]

...are you serious?

lol

no... FTR

TBF, I got bored on a PT today and made a tragedy of the commons argument about disseminating art too widely Anything can happen when you go insane.

[laxbrah420]

...are you serious?

lol

no... FTR

TBF, I got bored on a PT today and made a tragedy of the commons argument about disseminating art too widely Anything can happen when you go insane.

Please share

[laxbrah420]

...are you serious?

lol

no... FTR

word. I actually seemed to have forgotten to put Rylands factors in my outline and my notes suck. What are they? How do you determine shit's unnatural?

[Blumpbeef]

...are you serious?

lol

no... FTR

word. I actually seemed to have forgotten to put Rylands factors in my outline and my notes suck. What are they? How do you determine shit's unnatural?

I haven't done it yet but the Wikipedia article on ultra hazardous activities does a decent job.

[Birdnals]

...are you serious?

lol

no... FTR

word. I actually seemed to have forgotten to put Rylands factors in my outline and my notes suck. What are they? How do you determine shit's unnatural?

I have written down "anything likely to do mischief if it escapes". Think you gotta do a risk/utility analysis.

[SportsFan]

Blackburn’s True Rule: “[T]he person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes [abnormally dangerous activity], must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
Lord Cairns’s natural/non-natural use limitation: A landowner acts at his peril if he introduces upon his land “that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land.”

Hope that helps a bit. My professor doesn't really stress SL much so we never really focused on this stuff too much.

[laxbrah420]

Blackburn’s True Rule: “[T]he person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes [abnormally dangerous activity], must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
Lord Cairns’s natural/non-natural use limitation: A landowner acts at his peril if he introduces upon his land “that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land.”

Hope that helps a bit. My professor doesn't really stress SL much so we never really focused on this stuff too much.

That does help, thank you

[noleknight16]

Here's another hypo. How did I do?

N ate dinner at the Hibachi Grill without incident. The Hibachi Grill, without charge, provides a fortune cookie for each dinner at the end of the meal when the bill is presented.

N is about to receive his bill and cookie when O, who works with N at a local factory, see's N. O asks the manager if he can play a joke on N by writing something funny on the fortune cookie. The manager gives him some blank fortunes.

O writes the message and slips it into the cookie. Normally, the manager checks them but he did not in this case.

N breaks open the cookie upon receipt and reads the fortune written by O which states:
"YOU WILL DIE IN FIVE DAYS"

After reading the fortune, N has a panic attack and immediately leaves the restaurant. He locks himself inside the bedroom where he misses work, has trouble sleeping, and has terrible anxiety for weeks.

What are the strengths and weaknesses of claims N has against O? (Use 25 minutes on this question)
----------------------------------------------------------------------------------------------------------------------------------------
ASSAULT N vs O

N could bring an assault claim vs O for the fortune he received. In order to successfully bring an assault claim, N must show that O (1)O Acted, (2) intended to cause apprehension of an immediate harmful or offensive contact and (3) O's action caused N reasonable apprehension of an immediate harmful or offensive contact.
In this situation, O clearly acted by writing the fortune and placing it inside the cookie. No argument will likely be brought forth by O on this element.

The first issue is whether O intended N to apprehend an immediate harmful or physical contact by writing YOU WILL DIE IN FIVE DAYS on the fortune cookie. O will argue that he only intended it to be a joke. N will argue that even if he intended it to be a joke, he still apprehended harmful or physical contact. After all, a death threat is very serious. However, O will counter with the fact there's no immediacy present in the threat nor is there any figure there to give the threat except for a piece of paper. 5 days is likely not considered imminent. Many things could happen inbetween. O could get help from the police, forget about the threat, take proper precautions for the 5th day, etc. The threat maker could choose to not follow through in 5 days or get caught up in other activities. O will also argue that he was purposely hiding himself from N finding out it was him who wrote it. Most assaults are accompanied by a visible aggressive gesture of some kind, which isn't present in this case because O was sitting on the other side of the restaurant.

It is likely N was reasonable in apprehending a harmful or offensive contact, but there doesn't appear to be enough immediacy to win an assault suit against O.

IIED - N vs O

If the assault claim of N against O fails, he could still bring an Intentional Infliction of Emotional Distress (IIED) claim, which is a gap filler claim when other torts cannot apply. In order to establish IIED, N must show that O had (1) extreme and outrageous conduct, (2) intended to cause, (3) severe emotional distress to another person.

The first issue is whether or not N's conduct would be considered extreme or outrageous. When analyzing whether conduct is extreme our outrageous, we must ask ourselves whether the reaction we would have upon hearing the facts is "That's outrageous!!!". It depends heavily on the relationship that N and O have. If O holds a position of power over N, then it's more likely to be viewed as a outrageous or extreme conduct. This conduct took place in public rather than private, which opens an individual to public humiliation, further increasing the likelihood the conduct is extreme or outrageous. It's also important to know if N has any vulnerabilities, such as anxiety or susceptibility to overreact to threats like this. If there is a history AND O knew about them, then he is clearly taking advantage of N's vulnerability and its more likely that the conduct was outrageous or extreme. This would require knowing more facts behind the relationship the two had; was it simple work acquaintances or was it a relationship where a practical joke would be foreseeable?

The second issue is whether or not O intended to cause the emotional distress to N. N will argue that O intended to cause the distress because he wrote it down and gave it to the manager. O will respond he wanted to write a joke. Despite the fact it was a bad joke, it appears that O did not intend to cause severe emotional distress to N and therefore it is unlikely N will be able to succeed on an IIED claim.

[JRustle]

that looks good but I would cite some cases and compare/contrast them for each element... unless your professor isnt into that. its a more effective way of going through the elements of a CoA. So something like:
"O will argue that he only intended it to be a joke, similar to XYZ case. However, the difference between that case and O's joke is abc. N will not only point out that difference but also argue that even if it was a joke, it is not excusable because of LMNOP case" etc

[noleknight16]

that looks good but I would cite some cases and compare/contrast them for each element... unless your professor isnt into that. its a more effective way of going through the elements of a CoA. So something like:
"O will argue that he only intended it to be a joke, similar to XYZ case. However, the difference between that case and O's joke is abc. N will not only point out that difference but also argue that even if it was a joke, it is not excusable because of LMNOP case" etc

Thank you for the feedback!!!

He said that he doesn't care if cases are on the test or not but yeah if I can squeeze in case analogies that would be a good idea.

[LetsGoLAW]

I like the analysis, except my professors do not prefer the "ping pong" approach of "A will argue..." then "O will argue..." Depends what the professor wants. My contracts professor wants a modified IRAC without the "A will," "B will." So...

1) Issue (Unless professor prefers RULE first, like LEEWS says), 2) Quickly describe/negate the easy elements, 3) Provide more analysis on the deeper issues, 4) Reach a probably conclusion

"Next, a mutual mistake may exist between A and B. A mutual mistake is 1) a basic assumption of the contract, 2) that has a material effect, and 3) the risk of mistake is not allocated to the disadvantaged party. The construction of a statue was the basic assumption of the contract as evidenced in A and B's e-mails. Both e-mails refer to "The Town Statue." The discovered asphalt has a material effect on the contract because additional excavation will cost both parties more money and labor.

Regarding risk allocation, this element deserves further analysis. On the one hand, A owned the lot. Typically, landowners are aware of the characteristics of their land. Furthermore, A was a geology teacher. Geology teachers are skilled with different types of rock. As a result, the facts indicate A could possess some knowledge of the characteristics of his land.

Alternatively, B was the president of a multi-million dollar construction company. Becoming the head of multi-million dollar construction company probably requires years of work training in the field. In addition, due to B's experience, he should have foreseen this possible outcome and sent an inspector to A's lot beforehand. Concerning A's knowledge, a president of a construction company probably has more experience than a third-grade geology teacher with excavation.

On balance, B was probably the better allocator of the risk and a mutual mistake did not exist."

That's just me.

Edit: And in my class, we learned that IIED can be reckless. My attack outline: 1) An intentional or reckless infliction 2) of severe emotional or mental distress 3) by extreme and outrageous conduct. Intent can be shown by desire or substantial certainty. Recklessness is conscious disregard of the risk. Severe emotional or mental distress cannot be mere slights. Extreme and outrageous conduct goes beyond all bounds of decency.

[laxbrah420]

is there a difference between the "choice of paths doctrine" and secondary assumption of risk?

[swimmer11]

10 days until my first final.....freaking out.

[noleknight16]

I like the analysis, except my professors do not prefer the "ping pong" approach of "A will argue..." then "O will argue..." Depends what the professor wants. My contracts professor wants a modified IRAC without the "A will," "B will." So...

1) Issue (Unless professor prefers RULE first, like LEEWS says), 2) Quickly describe/negate the easy elements, 3) Provide more analysis on the deeper issues, 4) Reach a probably conclusion

"Next, a mutual mistake may exist between A and B. A mutual mistake is 1) a basic assumption of the contract, 2) that has a material effect, and 3) the risk of mistake is not allocated to the disadvantaged party. The construction of a statue was the basic assumption of the contract as evidenced in A and B's e-mails. Both e-mails refer to "The Town Statue." The discovered asphalt has a material effect on the contract because additional excavation will cost both parties more money and labor.

Regarding risk allocation, this element deserves further analysis. On the one hand, A owned the lot. Typically, landowners are aware of the characteristics of their land. Furthermore, A was a geology teacher. Geology teachers are skilled with different types of rock. As a result, the facts indicate A could possess some knowledge of the characteristics of his land.

Alternatively, B was the president of a multi-million dollar construction company. Becoming the head of multi-million dollar construction company probably requires years of work training in the field. In addition, due to B's experience, he should have foreseen this possible outcome and sent an inspector to A's lot beforehand. Concerning A's knowledge, a president of a construction company probably has more experience than a third-grade geology teacher with excavation.

On balance, B was probably the better allocator of the risk and a mutual mistake did not exist."

That's just me.

Edit: And in my class, we learned that IIED can be reckless. My attack outline: 1) An intentional or reckless infliction 2) of severe emotional or mental distress 3) by extreme and outrageous conduct. Intent can be shown by desire or substantial certainty. Recklessness is conscious disregard of the risk. Severe emotional or mental distress cannot be mere slights. Extreme and outrageous conduct goes beyond all bounds of decency.

Yeah my Torts professor loves the back and forth so that's why I have that approach going.

Crap I forgot it can be reckless. What exactly defines reckless in IIED? I don't remember. Society/Common Sense?

[LetsGoLAW]

I like the analysis, except my professors do not prefer the "ping pong" approach of "A will argue..." then "O will argue..." Depends what the professor wants. My contracts professor wants a modified IRAC without the "A will," "B will." So...

1) Issue (Unless professor prefers RULE first, like LEEWS says), 2) Quickly describe/negate the easy elements, 3) Provide more analysis on the deeper issues, 4) Reach a probably conclusion

"Next, a mutual mistake may exist between A and B. A mutual mistake is 1) a basic assumption of the contract, 2) that has a material effect, and 3) the risk of mistake is not allocated to the disadvantaged party. The construction of a statue was the basic assumption of the contract as evidenced in A and B's e-mails. Both e-mails refer to "The Town Statue." The discovered asphalt has a material effect on the contract because additional excavation will cost both parties more money and labor.

Regarding risk allocation, this element deserves further analysis. On the one hand, A owned the lot. Typically, landowners are aware of the characteristics of their land. Furthermore, A was a geology teacher. Geology teachers are skilled with different types of rock. As a result, the facts indicate A could possess some knowledge of the characteristics of his land.

Alternatively, B was the president of a multi-million dollar construction company. Becoming the head of multi-million dollar construction company probably requires years of work training in the field. In addition, due to B's experience, he should have foreseen this possible outcome and sent an inspector to A's lot beforehand. Concerning A's knowledge, a president of a construction company probably has more experience than a third-grade geology teacher with excavation.

On balance, B was probably the better allocator of the risk and a mutual mistake did not exist."

That's just me.

Edit: And in my class, we learned that IIED can be reckless. My attack outline: 1) An intentional or reckless infliction 2) of severe emotional or mental distress 3) by extreme and outrageous conduct. Intent can be shown by desire or substantial certainty. Recklessness is conscious disregard of the risk. Severe emotional or mental distress cannot be mere slights. Extreme and outrageous conduct goes beyond all bounds of decency.

Yeah my Torts professor loves the back and forth so that's why I have that approach going.

Crap I forgot it can be reckless. What exactly defines reckless in IIED? I don't remember. Society/Common Sense?

Recklessness is the conscious disregard of the high probability that the risk will occur. "On April 1st, A dresses up as an FBI agent and tells his neighbor, B, that her husband was kidnapped by terrorists. A intended to play a joke because in actuality, B's husband was out fishing. As a result, B had a panic attack that lasted for weeks."

Here, intent can be shown by substantial certainty or recklessness can be shown by conscious disregard of the risk. Regarding intent, do not confuse it with the common law mens rea in criminal law. That intent requires a purpose to achieve a particular result (the killing of another human). Battery, on the other hand requires an intentional act, can be a simple nudge.

---

On torts, my professor never went over duty and foreseeability. He only referred to foreseeability under proximate cause. Think I should talk about it under duty still?

[noleknight16]

I like the analysis, except my professors do not prefer the "ping pong" approach of "A will argue..." then "O will argue..." Depends what the professor wants. My contracts professor wants a modified IRAC without the "A will," "B will." So...

1) Issue (Unless professor prefers RULE first, like LEEWS says), 2) Quickly describe/negate the easy elements, 3) Provide more analysis on the deeper issues, 4) Reach a probably conclusion

"Next, a mutual mistake may exist between A and B. A mutual mistake is 1) a basic assumption of the contract, 2) that has a material effect, and 3) the risk of mistake is not allocated to the disadvantaged party. The construction of a statue was the basic assumption of the contract as evidenced in A and B's e-mails. Both e-mails refer to "The Town Statue." The discovered asphalt has a material effect on the contract because additional excavation will cost both parties more money and labor.

Regarding risk allocation, this element deserves further analysis. On the one hand, A owned the lot. Typically, landowners are aware of the characteristics of their land. Furthermore, A was a geology teacher. Geology teachers are skilled with different types of rock. As a result, the facts indicate A could possess some knowledge of the characteristics of his land.

Alternatively, B was the president of a multi-million dollar construction company. Becoming the head of multi-million dollar construction company probably requires years of work training in the field. In addition, due to B's experience, he should have foreseen this possible outcome and sent an inspector to A's lot beforehand. Concerning A's knowledge, a president of a construction company probably has more experience than a third-grade geology teacher with excavation.

On balance, B was probably the better allocator of the risk and a mutual mistake did not exist."

That's just me.

Edit: And in my class, we learned that IIED can be reckless. My attack outline: 1) An intentional or reckless infliction 2) of severe emotional or mental distress 3) by extreme and outrageous conduct. Intent can be shown by desire or substantial certainty. Recklessness is conscious disregard of the risk. Severe emotional or mental distress cannot be mere slights. Extreme and outrageous conduct goes beyond all bounds of decency.

Yeah my Torts professor loves the back and forth so that's why I have that approach going.

Crap I forgot it can be reckless. What exactly defines reckless in IIED? I don't remember. Society/Common Sense?

Recklessness is the conscious disregard of the high probability that the risk will occur. "On April 1st, A dresses up as an FBI agent and tells his neighbor, B, that her husband was kidnapped by terrorists. A intended to play a joke because in actuality, B's husband was out fishing. As a result, B had a panic attack that lasted for weeks."

Here, intent can be shown by substantial certainty or recklessness can be shown by conscious disregard of the risk. Regarding intent, do not confuse it with the common law mens rea in criminal law. That intent requires a purpose to achieve a particular result (the killing of another human). Battery, on the other hand requires an intentional act, can be a simple nudge.

---

On torts, my professor never went over duty and foreseeability. He only referred to foreseeability under proximate cause. Think I should talk about it under duty still?

Thank you sir! That would push my IIED analysis over the top for sure. Thank you for reminding me of recklessness! AIMING FOR THAT A TOMORROW LEGGO!!!!!

[20130312]

No, do it the way your professor taught it. Mine has foreseeability under breach and PC, but the analysis is slightly different.

[minnbills]

Had a good, productive day today. Back in the swing of things!

[noleknight16]

No, do it the way your professor taught it. Mine has foreseeability under breach and PC, but the analysis is slightly different.

+1 Professor is always right.