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

[Br3v]

I have written down that contributory negligence can be defense in some jurisdictions to strict liability claims?

That doesn't seem to make sense.

Indeed but in some jurisdictions it's true.. In those jurisdictions (Virginia and 3 other states) that still do contrib negligence instead of comparative..

It's an odd concept to apply it to SL but it is a defense

FTFY

Thanks though

[illiniguy1551]

Anyone know a good online resource for practicing statute interpretation using MPC and CL?? HALP

[North]

Anyone know a good online resource for practicing statute interpretation using MPC and CL?? HALP

That would have been handy a couple of days ago, never heard of such a thing though.

Aside, of course, from just practicing on statutes in a book of criminal statutes...

[rambleon65]

In a breach of an Option Contract (that is, w/ consideration), I understand the non-breaching party will likely get expectancy since the breach of an Option Contract is a breach of an express contract.

But exactly how is that measured?

It appears the only expected value of the option contract is the value of expectancy under the secondary (main) contract.... but seems like a stretch?

i.e.

I pay $10 to keep your offer for a movie deal open (Option K). You revoke the deal. Would I get whatever I would have gotten through the movie deal even though the movie deal itself is a secondary contract?


NVM: Per Prof, you get specific performance.

[sinfiery]

How does the felony murder rule with with accomplice liability?

[hellojd]

How does the felony murder rule with with accomplice liability?

This question is on my mind too (assuming you're asking if you can be liable as an accomplice to felony murder)

[Jsa725]

.

[sinfiery]

Thanks!


Few questions:

Do the tests of if the felony wasn't enumerated, and it was found to be inherently dangerous to human life/doesn't merge analysis done with the actions of Jimbo in that case I take it.


Also, if the felony was enumerated, would the intent/malice that (let us assume) existed when Bubba shot the officer transfer to Jimbo? Or would it only be a way to get a murder 2 conviction? Or would exactly the crime that Bubba would have been guilty of is the crime Jimbo is guilty of?

[Jsa725]

.

[Br3v]

Anyone want to take a shot at laying out how you would answer "What is proximate cause?"

*Btw this isn't an exam question or anything don't worry. I am just interested in seeing how other people comprehend it.

[kay2016]

Anyone want to take a shot at laying out how you would answer "What is proximate cause?"

*Btw this isn't an exam question or anything don't worry. I am just interested in seeing how other people comprehend it.

Our test for proximate cause: Whether the D should have reasonably foreseen, as a risk of her conduct, that type of harm suffered by plaintiff.

And *type* of harm can be framed by the plaintiff broadly or narrowly...


Not exactly what other classes did, but that's what we were supposed to use.

[shifty_eyed]

Anyone want to take a shot at laying out how you would answer "What is proximate cause?"

*Btw this isn't an exam question or anything don't worry. I am just interested in seeing how other people comprehend it.

A justice-rationing device used to limit liability when the tortious behavior seems too attenuated to the harm that occurred to hold the tortfeasor liable.

[hephaestus]

Anyone want to take a shot at laying out how you would answer "What is proximate cause?"

*Btw this isn't an exam question or anything don't worry. I am just interested in seeing how other people comprehend it.

Proximate cause is trying to assess the harm within the risk of a particular activity. Conceptualize it this way: if a reasonable person were standing next to you, what would they warn you about in regards to the activity? If you were boiling water in your apartment, the reasonable person would tell you to watch out for it splashing, avoid catching anything on fire with the burner, and to prevent children from going near it. However, the reasonable person would not say to watch out for your floorboards to suddenly give out and the water to fall on the tenant below (or some other freak occurrence).

Critically, proximate cause is a different concept than duty. In the boiling water hypo, you have a duty to your fellow tenants not to pour boiling water on them. At the same time, courts would not find liability in this situation because the risks of boiling water did not encompass the harm that occurred. There was a duty that was breached that resulted in damages, but no liability.

Torts as a discipline recognizes that harms occur everyday, but that every harm does not necessarily result in a remedy. Proximate cause seeks to determine which damages plaintiffs should internalize and which should be borne by the tortfeasor.

[BigZuck]

Critically, proximate cause is a different concept than duty.

RANCID anti-Palsgraf trolling.

You make me sick.

[Br3v]

All good answers and re-enforce my own.

I was just slightly caught up on whether forseeabilty and harm within the risk was the complete end all and be all for prox cause. But I think it is more precise to say it is certainly a front runner and used in most situations, but the J Andrews "consider all the factors" type analysis is often still used.

[bandenjamin]

Still can't quite wrap my head around Erie/Byrd/Hanna/etc. As I understand it, when a state rule directly conflicts with the FRCP, you use the FRCP, but when do you apply the Hanna tests of Erie goals? Is it anytime that both federal (non-FRCP) and state rules could be applied, or is it only when a state rule conflicts with a non-FRCP federal rule?

Here is a handy little flowchart for Erie stuff. The end part is a little "wrong" if you follow the path down to where it says "reconcile?" In real life it's a modified state rule, but for our exam the professor just said to pretend you couldn't reconcile so I didn't add anything else in there.

HTH. So glad to be done with civ pro

[BigZuck]

All good answers and re-enforce my own.

I was just slightly caught up on whether forseeabilty and harm within the risk was the complete end all and be all for prox cause. But I think it is more precise to say it is certainly a front runner and used in most situations, but the J Andrews "consider all the factors" type analysis is often still used.

Yeah, there's a difference between risk within array and the older "directness" test which is kind of what Andrews thought maybe sort of should have maybe been applied in Palsgraf.

[North]

Anybody have the BLL for Primary Assumption of Risk and Secondary Assumption of Risk from Torts?

[BigZuck]

Anybody have the BLL for Primary Assumption of Risk and Secondary Assumption of Risk from Torts?

Primary- You should have known that a foulball can hit you in the face, dummy. You assumed the risk by watching the game.
Secondary-You knew you could get hit in the face by a foul ball and yet you came to the game anyway? No recovery for you, dummy.

Express- Remember when you signed that waiver saying you couldn't sue us if you got hit in the face by a foul ball? Nice move, dummy.

[Br3v]

Anybody have the BLL for Primary Assumption of Risk and Secondary Assumption of Risk from Torts?

Primary: P assumed the reasonable risk (as judged by P subjective intent).
ex) Racecar driver assumes risk of crash because he is getting paid for it (monetary payment isn't needed though)

Secondary: P assumed an unreasonable risk. Comes up when D claims assumption of the risk (You assumed the risk of a NASCAR crash), but P says no there was something special here that made it unreasonable (it was raining really bad on the tracks) then D says yes, but you knew that and you assumed the risk negligently anyways.
Thus secondary is just another name for contributory negligence.

[BigZuck]

Anybody have the BLL for Primary Assumption of Risk and Secondary Assumption of Risk from Torts?

Primary: P assumed the reasonable risk (as judged by P subjective intent).
ex) Racecar driver assumes risk of crash because he is getting paid for it (monetary payment isn't needed though)

Secondary: P assumed an unreasonable risk. Comes up when D claims assumption of the risk (You assumed the risk of a NASCAR crash), but P says no there was something special here that made it unreasonable (it was raining really bad on the tracks) then D says yes, but you knew that and you assumed the risk negligently anyways.
Thus secondary is just another name for contributory negligence.

4 reals?

I'm tired and actively trying to forget about torts but the reasonable/unreasonable distinction is one I had never heard.

The way I learned it, secondary was kind of analogous to the concept of "consent" in intentional torts. You knew the risks and did the activity anyway.

And then primary was just basically related to sports stuff (although maybe you could expand it from there, that was never clear to me), and it was that you should have known what the risks were and if you didn't, sucks to be you, dummy.

[kay2016]

Anybody have the BLL for Primary Assumption of Risk and Secondary Assumption of Risk from Torts?

Primary: P assumed the reasonable risk (as judged by P subjective intent).
ex) Racecar driver assumes risk of crash because he is getting paid for it (monetary payment isn't needed though)

Secondary: P assumed an unreasonable risk. Comes up when D claims assumption of the risk (You assumed the risk of a NASCAR crash), but P says no there was something special here that made it unreasonable (it was raining really bad on the tracks) then D says yes, but you knew that and you assumed the risk negligently anyways.
Thus secondary is just another name for contributory negligence.

4 reals?

I'm tired and actively trying to forget about torts but the reasonable/unreasonable distinction is one I had never heard.

The way I learned it, secondary was kind of analogous to the concept of "consent" in intentional torts. You knew the risks and did the activity anyway.

And then primary was just basically related to sports stuff (although maybe you could expand it from there, that was never clear to me), and it was that you should have known what the risks were and if you didn't, sucks to be you, dummy.

We also did primary as amusement parks.. You know something is dangerous to an extent, but do it anyway..

Our secondary example is that you know one set of stairs in your building is broken, in fact, you complain to your landlord.. He does nothing.. But like a dummy, you used them anyway and fell and got hurt..


To us, express and primary assumption of risk means that the D has no duty.. You waived it or just decided to do the dumb thing

With secondary, D is clearly negligent (he needed to fix the stairs) but you knew he was negligent and didn't alter your behavior, so were not going to make the D pay (even though he was actually negligent) because you're a dummy to (so in this way it's kinda like contib. Negligence)

[BigZuck]

Anybody have the BLL for Primary Assumption of Risk and Secondary Assumption of Risk from Torts?

Primary: P assumed the reasonable risk (as judged by P subjective intent).
ex) Racecar driver assumes risk of crash because he is getting paid for it (monetary payment isn't needed though)

Secondary: P assumed an unreasonable risk. Comes up when D claims assumption of the risk (You assumed the risk of a NASCAR crash), but P says no there was something special here that made it unreasonable (it was raining really bad on the tracks) then D says yes, but you knew that and you assumed the risk negligently anyways.
Thus secondary is just another name for contributory negligence.

4 reals?

I'm tired and actively trying to forget about torts but the reasonable/unreasonable distinction is one I had never heard.

The way I learned it, secondary was kind of analogous to the concept of "consent" in intentional torts. You knew the risks and did the activity anyway.

And then primary was just basically related to sports stuff (although maybe you could expand it from there, that was never clear to me), and it was that you should have known what the risks were and if you didn't, sucks to be you, dummy.

We also did primary as amusement parks.. You know something is dangerous to an extent, but do it anyway..

Our secondary example is that you know one set of stairs in your building is broken, in fact, you complain to your landlord.. He does nothing.. But like a dummy, you used them anyway and fell and got hurt..


To us, express and primary assumption of risk means that the D has no duty.. You waived it or just decided to do the dumb thing

With secondary, D is clearly negligent (he needed to fix the stairs) but you knew he was negligent and didn't alter your behavior, so were not going to make the D pay (even though he was actually negligent) because you're a dummy to (so in this way it's kinda like contib. Negligence)

Yeah, our prof called secondary the "Ugly old cousin" of contributory negligence.

[Wearthewildthingsr]

In a breach of an Option Contract (that is, w/ consideration), I understand the non-breaching party will likely get expectancy since the breach of an Option Contract is a breach of an express contract.

But exactly how is that measured?

It appears the only expected value of the option contract is the value of expectancy under the secondary (main) contract.... but seems like a stretch?

i.e.

I pay $10 to keep your offer for a movie deal open (Option K). You revoke the deal. Would I get whatever I would have gotten through the movie deal even though the movie deal itself is a secondary contract?


NVM: Per Prof, you get specific performance.

A breach of an option K is almost always going to be because I wanted to exercise that option to get at whatever I paid for to keep whatever open. If not well then the other guy gets to keep my $ if I choose not to exercise the option within the time limit.

The damages is going to depend upon what the subject matter of the K was for. So simple example. Let's say it was for idk some widgets that were going at $50 overall. Now we're gonna measure this with expectation damages. I'm going to either cover or receive the market differential between the widgets that were going at $50 and whatever substitute I can find. Out of that we're going to subtract already the costs I paid for the option K as this is costs I would have had to already sustain if I wanted my widgets. What this means for our case is we're not getting the $ we paid for the option K back.

This all ties back to the purpose of damages which is to put the injured party in as good a position as he would've been if the deal had gone through.

Edit. Didn't see you were talking about a movie deal. It's not so easy as specific performance. There's issues when it comes to a personal service contract and depending upon if the deal would have to include some sorta of personal service (i.e. maybe the offeror has to play in how to direct or manage the movie) the court would not order specific performance.

Actually most likely, the court will interpret the breach as entitling you to the full benefit of your bargain. In Parker v. 20th Century Fox, the court found there to be no equivalent substitute for something like a movie deal and found that the injured party had no duty to mitigate by accepting a lesser and inferior role. As a result, they awarded her the FULL amount she would've earned from the movie deal from doing absolutely nothing but sitting on her ass.

[arklaw13]

Anybody have the BLL for Primary Assumption of Risk and Secondary Assumption of Risk from Torts?

Our prof taught us the rule from Meistrich, which basically eliminates real assumption of risk.

Primary: defendant had no duty
Secondary: plaintiff was contributorily negligent

Almost all modern assumption of risk doctrine has followed this approach as courts have become more accepting of paternalistic tort law.