Torts: Arguing different standards Forum

[sandiego222]

Kind of confused about this

How do you frame your argument if there are multiple standards that apply (slightly different than how GTM describes forks in the law)

Ex.

You have a fact pattern where A is a non-flagrant trespasser on Bs land and suffers a harm

Under one standard (old common law), there is a distinction between trespassers and invitees/ licensees
Under another, the distinction only matters in certain circumstances

If you don't know which standard the jurisdiction adopts, what does an argument look like? Do you make a case under one standard and then a case under the other? Language like "If the court adopts Standard X, B has no duty to A" and "But if the court adopts Standard Y, A can argue.... etc. etc." ????

[sandiego222]

Please? I would love if someone weighed in on this

[20130312]

Yes, you want to argue all the relevant standards. "Under traditional rules of landowner liability... However, many modern courts have adopted... Alternatively, some jurisdictions apply..."

[jkpolk]

Factors X Y and Z suggest applying such and such would be appropriate, similar to how such and such was applied in case T. However, Facts ABC suggest applying so and so, similar to Q and different than T. Underlying themes of the course would favor such and such because blah blah blah, however there would be countervailing pressure from themes todaloo to do so and so.

Then talk about how the junk would come out under each standard. policy reasons to apply one over the other in terms of result here and across the board. there is no end to the sophistry