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I've got the over-all concept down-packed but when it comes to exam time I'd like to have a bullet proof attack strategy that even exam butterflies can't unravel. Exam is closed book. Any tips to share?

LAWYER2 wrote:I've got the over-all concept down-packed but when it comes to exam time I'd like to have a bullet proof attack strategy that even exam butterflies can't unravel. Exam is closed book. Any tips to share?

P has suffered an injury

Can P establish that she was owed a duty of care?

Can P show that D breached that duty of care?

Did D's actions cause P's injuries both factually and proximately?

You don't ask whether D owed P a duty; you ask what duty D owes. Absent special circumstances (such as if D is a professional, or a child), D always owes P a duty of reasonable care. No matter what, 100% of the time. If you're watering your lawn, you owe people a duty of reasonable care. If you're working with a chainsaw, you owe people a duty of reasonable care. I must have used the word reasonable easily 50 times on my Torts exam (A+).

No, for instance, if you assume a risk then you cannot go after the defendant if you believe he/she breached a duty of care since you were not owed any. A trespasser cannot sue a landowner for a hidden danger on one's property.

waxecstatic wrote:No, for instance, if you assume a risk then you cannot go after the defendant if you believe he/she breached a duty of care since you were not owed any. A trespasser cannot sue a landowner for a hidden danger on one's property.

Of course they can. Assumption of risk is a defense. The above poster had it right: what duty was owed?

If someone trespasses on your land you do not owe them a duty of reasonable care in the sense of warning them of any hidden dangers, or inspecting premises. I'm sure there is a case that explores this.

Check out Carter v. Kinney

Closed book exams suck but present a good opportunity to get a top grade if the test is hard. Good opportunity to get higher on the crap heap. My best grades have been on closed books.

Just memorize the prima facie case elements.

Good input! Any suggestions on weaving defenses into a scenario to cover all bases?

Just go through your outline and make a flowchart.

NYC2014 wrote:You don't ask whether D owed P a duty; you ask what duty D owes. Absent special circumstances (such as if D is a professional, or a child), D always owes P a duty of reasonable care. No matter what, 100% of the time. If you're watering your lawn, you owe people a duty of reasonable care. If you're working with a chainsaw, you owe people a duty of reasonable care. I must have used the word reasonable easily 50 times on my Torts exam (A+).

For the record, this strategy would have doomed anyone who took my torts exam. I guess my prof just had a lot more emphasis on those "special circumstances" where there is a heightened or lowered duty (for us, there were 5 levels of duty ranging from no duty to strict liability. We spent half the semester on this concept and had to know it all). So.. be sure to account for the way your professor taught the class.