Themis Bar Review Hangout - July 2015 Exam Forum

[sd5289]

[+] Spoiler

A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate's murderous plans and later found the ice pick under the roommate's bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep.
In a suit against the roommate for assault, will the student prevail?
ANo, because the roommate did not touch the student.
BNo, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.
CYes, because it was reasonable for the student to feel afraid of sleeping in his room afterward.
DYes, because the roommate intended to inflict serious harm.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

Answer choice B is correct. To establish a claim for assault, a plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the apprehension necessary for an assault claim. Answer choice A is incorrect because contact or touching is not required to establish a claim of assault. Answer choice C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Proof of apprehension at the time of the defendant's act is necessary even given the fact that the student became fearful of future harmful contact. Answer choice D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim.

I thought assault was also attempted battery??

It is, but the other person has to be conscious of the attempted battery. Assault requires that a person is put in imminent fear of injury. If a person is asleep at the time, that element can't be met.

Also, I'd call this an attempted murder before I'd call it an attempted battery.

ETA: re. me thinking it's attempted murder: I agree with the previous poster that this is torts, not criminal law

[ColoBoul]

[+] Spoiler

A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate's murderous plans and later found the ice pick under the roommate's bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep.
In a suit against the roommate for assault, will the student prevail?
ANo, because the roommate did not touch the student.
BNo, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.
CYes, because it was reasonable for the student to feel afraid of sleeping in his room afterward.
DYes, because the roommate intended to inflict serious harm.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

Answer choice B is correct. To establish a claim for assault, a plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the apprehension necessary for an assault claim. Answer choice A is incorrect because contact or touching is not required to establish a claim of assault. Answer choice C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Proof of apprehension at the time of the defendant's act is necessary even given the fact that the student became fearful of future harmful contact. Answer choice D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim.

I thought assault was also attempted battery??

It is, but the other person has to be conscious of the attempted battery. Assault requires that a person is put in imminent fear of injury. If a person is asleep at the time, that element can't be met.

Also, I'd call this an attempted murder before I'd call it an attempted battery.

ETA: re. me thinking it's attempted murder: I agree with the previous poster that this is torts, not criminal law

In Torts: An assault is the plaintiff’s reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant’s action or threat with the intent to cause either the apprehension of such contact or the contact itself.

In Crim: Assault is:

i) An attempt to commit a battery; or

ii) Intentionally placing another in apprehension of imminent bodily harm.

Therefore you gotta pay attention to if it is either State v. Defendant or Person v. Defendant.

[anon sequitur]

Yeah, that's a damn tricky question, I couldn't figure out why attempted battery type assault wouldn't fit here, and didn't notice it was a suit by one student against another until Ahyis pointed that out.

[sd5289]

I don't think the distinction is Crim v. Torts. In Torts, let's say you intended to punch someone in the face, but you miss. So long as you caused your target to have a fear of imminent bodily harm, that is an assault. It is also, by definition, an attempted battery. If it helps to call it a failed battery, then by all means do so. But you can still have an assault where the party intended to commit a battery. Not sure this really matters all that much though.

The key to the MBE question wasn't the D's intent or actions, it was whether the fear of imminent bodily harm element was met, which it was not because the P was asleep at the time.

[somuchbooty]

Has anyone abandoned outlines and essays and only doing questions now? I just can't put forth the effort to do anything else and I feel like that's bad.

[ColoBoul]

I don't think the distinction is Crim v. Torts. In Torts, let's say you intended to punch someone in the face, but you miss. So long as you caused your target to have a fear of imminent bodily harm, that is an assault. It is also, by definition, an attempted battery. If it helps to call it a failed battery, then by all means do so. But you can still have an assault where the party intended to commit a battery. Not sure this really matters all that much though.

The key to the MBE question wasn't the D's intent or actions, it was whether the fear of imminent bodily harm element was met, which it was not because the P was asleep at the time.

True that is part of it. But say the State decided to file a charge based on the circumstances, fulfilling the intent to commit a battery would be sufficient for assault under Crim Law even if the party didn't "reasonable fear" because they were asleep.

[anon sequitur]

True that is part of it. But say the State decided to file a charge based on the circumstances, fulfilling the intent to commit a battery would be sufficient for assault under Crim Law even if the party didn't "reasonable fear" because they were asleep.

Yeah, this is why the crim/torts distinction is important here. An "attempted battery" assault that fails to harm or even make the victim aware of the attempt would still be an attempt, as long as there was substantial step and the specific intent. That would make D a good answer if this were a criminal case, since he took a substantial step.

[IamIn]

Generally, one plaintiff cannot aggregate claims against multiple defendants in order to meet the AIC requirement for diversity citizenship.

Is there an exception to this rule for when the multiple Ds are jointly liable tortfeasors? Or did I make that up?

I don't think you did..
If one P has joint liability claims against multiple Ds then you can aggregate. Otherwise, at least one claim against one D must be $75K+.
Please correct me if I'm wrong.

[Pickled]

[+] Spoiler

A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate's murderous plans and later found the ice pick under the roommate's bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep.
In a suit against the roommate for assault, will the student prevail?
ANo, because the roommate did not touch the student.
BNo, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.
CYes, because it was reasonable for the student to feel afraid of sleeping in his room afterward.
DYes, because the roommate intended to inflict serious harm.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

Answer choice B is correct. To establish a claim for assault, a plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the apprehension necessary for an assault claim. Answer choice A is incorrect because contact or touching is not required to establish a claim of assault. Answer choice C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Proof of apprehension at the time of the defendant's act is necessary even given the fact that the student became fearful of future harmful contact. Answer choice D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim.

AH fuck that is right. Thank you for setting me straight.
I thought assault was also attempted battery??

In CRIMINAL law, yes. This is torts. It's a separate thing.

[Pickled]

I have been hearing people are getting a bunch of repeat questions in the later mixed sets. I just did set 15 and everything was new and totally out there. Totally got crushed.

[anon sequitur]

I don't think you did..
If one P has joint liability claims against multiple Ds then you can aggregate. Otherwise, at least one claim against one D must be $75K+.
Please correct me if I'm wrong.

Yeah, but if you have a joint-and-several liability claim, you don't have to worry about the AIC as long as you've got more than $75,000 for the actual injury, because all D's are fully liable. You can name any or all of them

[juniormint33]

I don't think you did..
If one P has joint liability claims against multiple Ds then you can aggregate. Otherwise, at least one claim against one D must be $75K+.
Please correct me if I'm wrong.

Yeah, but if you have a joint-and-several liability claim, you don't have to worry about the AIC as long as you've got more than $75,000 for the actual injury, because all D's are fully liable. You can name any or all of them

So I'm splitting hairs at this point - imagine that! Haha. Thanks, and thanks for the help with BER yesterday

[marthac66]

Hi,

Anyone using anything from Seperac?? Also, anyone NOT looked at the New York specific stuff yet? Please console....

Yup, I've blown off the NY specific stuff other than a once through the lectures. Figure I can learn enough in a week to pass with a decent MBE.

How are you getting on now with NY stuff??

[kgus22]

Does anyone have just a list of date deadlines for FRCP?

[eloise16]

Third Party Impleader confusion!!!

[+] Spoiler

A consumer from State A filed a $100,000 products liability action in federal court against a manufacturer incorporated and with its principal place of business in State B. The consumer claimed that a flaw in the manufacturer’s product had resulted in severe injuries to the consumer. In its answer, the manufacturer asserted a third-party complaint against the product designer, also incorporated and with its principal place of business in State B. Believing that the consumer had sued the wrong defendant, the manufacturer claimed both that the designer was solely responsible for the flaw that had led to the consumer’s injuries and that the manufacturer was not at fault. The designer is aware that the manufacturer did not follow all of the designer’s specifications when making the product.

Which of the following arguments is most likely to achieve the designer’s goal of dismissal of the third-party complaint?


A. The court does not have subject-matter jurisdiction over the third-party complaint, because both the manufacturer and the designer are citizens of State
B.The manufacturer failed to obtain the court’s leave to file the third-party complaint.
C. The manufacturer’s failure to follow the designer’s specifications caused the flaw that resulted in the consumer’s injuries.
D. The manufacturer’s third-party complaint failed to state a proper third-party claim.

Answer choice D is correct. Rule 14 sets out the rules governing impleader (third-party claims). Third-party claims are claims that are made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim. In this case, the manufacturer’s third-party complaint alleged that the designer was responsible for the flaw and that the manufacturer was not at fault. The manufacturer’s claim against the designer was not based on an assertion that the designer would be liable to the manufacturer for the manufacturer’s liability on the consumer’s claim. Rather, the manufacturer argued that he was not at fault and the consumer sued the wrong defendant. Because the manufacturer did not claim the designer would be liable to it on the basis of indemnification or contribution if the manufacturer was found liable to the consumer, the manufacturer has failed to state a proper third-party claim.

I don't understand this -- how is alleging that the manufacturer is solely responsible for the flaw not the same as alleging that a nonparty is responsible for the Defendant's liability?

[BelugaWhale]

Third Party Impleader confusion!!!

[+] Spoiler

A consumer from State A filed a $100,000 products liability action in federal court against a manufacturer incorporated and with its principal place of business in State B. The consumer claimed that a flaw in the manufacturer’s product had resulted in severe injuries to the consumer. In its answer, the manufacturer asserted a third-party complaint against the product designer, also incorporated and with its principal place of business in State B. Believing that the consumer had sued the wrong defendant, the manufacturer claimed both that the designer was solely responsible for the flaw that had led to the consumer’s injuries and that the manufacturer was not at fault. The designer is aware that the manufacturer did not follow all of the designer’s specifications when making the product.

Which of the following arguments is most likely to achieve the designer’s goal of dismissal of the third-party complaint?


A. The court does not have subject-matter jurisdiction over the third-party complaint, because both the manufacturer and the designer are citizens of State
B.The manufacturer failed to obtain the court’s leave to file the third-party complaint.
C. The manufacturer’s failure to follow the designer’s specifications caused the flaw that resulted in the consumer’s injuries.
D. The manufacturer’s third-party complaint failed to state a proper third-party claim.

Answer choice D is correct. Rule 14 sets out the rules governing impleader (third-party claims). Third-party claims are claims that are made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim. In this case, the manufacturer’s third-party complaint alleged that the designer was responsible for the flaw and that the manufacturer was not at fault. The manufacturer’s claim against the designer was not based on an assertion that the designer would be liable to the manufacturer for the manufacturer’s liability on the consumer’s claim. Rather, the manufacturer argued that he was not at fault and the consumer sued the wrong defendant. Because the manufacturer did not claim the designer would be liable to it on the basis of indemnification or contribution if the manufacturer was found liable to the consumer, the manufacturer has failed to state a proper third-party claim.

I don't understand this -- how is alleging that the manufacturer is solely responsible for the flaw not the same as alleging that a nonparty is responsible for the Defendant's liability?

I remember this question. It's tricky. The issue is that impleader is used for ONLY contribution and indemnification. Here, the manufacturer sought to use impleader as a switcheroo type device. That is, switching the designer in place of the manufacturer. That isn't contribution or indemnification. To put it differently, the manufacturers claim is that its "not at fault". That's just wrong as a matter of law. In product liabilities, the manufacturer is liable and is at fault. It can indemnify itself though. But this isn't the same as not being at fault to begin with.

Since the manufacturer's impleader claim essentially was "you got the wrong guy, I'm not liable, sue this person instead", instead of "if I'm liable then you owe me money", its not a proper impleader

[eloise16]

Third Party Impleader confusion!!!

[+] Spoiler

A consumer from State A filed a $100,000 products liability action in federal court against a manufacturer incorporated and with its principal place of business in State B. The consumer claimed that a flaw in the manufacturer’s product had resulted in severe injuries to the consumer. In its answer, the manufacturer asserted a third-party complaint against the product designer, also incorporated and with its principal place of business in State B. Believing that the consumer had sued the wrong defendant, the manufacturer claimed both that the designer was solely responsible for the flaw that had led to the consumer’s injuries and that the manufacturer was not at fault. The designer is aware that the manufacturer did not follow all of the designer’s specifications when making the product.

Which of the following arguments is most likely to achieve the designer’s goal of dismissal of the third-party complaint?


A. The court does not have subject-matter jurisdiction over the third-party complaint, because both the manufacturer and the designer are citizens of State
B.The manufacturer failed to obtain the court’s leave to file the third-party complaint.
C. The manufacturer’s failure to follow the designer’s specifications caused the flaw that resulted in the consumer’s injuries.
D. The manufacturer’s third-party complaint failed to state a proper third-party claim.

Answer choice D is correct. Rule 14 sets out the rules governing impleader (third-party claims). Third-party claims are claims that are made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim. In this case, the manufacturer’s third-party complaint alleged that the designer was responsible for the flaw and that the manufacturer was not at fault. The manufacturer’s claim against the designer was not based on an assertion that the designer would be liable to the manufacturer for the manufacturer’s liability on the consumer’s claim. Rather, the manufacturer argued that he was not at fault and the consumer sued the wrong defendant. Because the manufacturer did not claim the designer would be liable to it on the basis of indemnification or contribution if the manufacturer was found liable to the consumer, the manufacturer has failed to state a proper third-party claim.

I don't understand this -- how is alleging that the manufacturer is solely responsible for the flaw not the same as alleging that a nonparty is responsible for the Defendant's liability?

I remember this question. It's tricky. The issue is that impleader is used for ONLY contribution and indemnification. Here, the manufacturer sought to use impleader as a switcheroo type device. That is, switching the designer in place of the manufacturer. That isn't contribution or indemnification. To put it differently, the manufacturers claim is that its "not at fault". That's just wrong as a matter of law. In product liabilities, the manufacturer is liable and is at fault. It can indemnify itself though. But this isn't the same as not being at fault to begin with.

Since the manufacturer's imp leader claim essentially was "you got the wrong guy, I'm not liable, sue this person instead", instead of "if I'm liable then you owe me money", its not a proper impleader

Okay, I think that makes sense to me. So even if the manufacturer's claim is effectively claiming that the designer is liable via contribution or indemnification, a defendant must actually expressly state such a claim in the third party complaint rather than allude to it?

[GULCPerson]

Third Party Impleader confusion!!!

[+] Spoiler

A consumer from State A filed a $100,000 products liability action in federal court against a manufacturer incorporated and with its principal place of business in State B. The consumer claimed that a flaw in the manufacturer’s product had resulted in severe injuries to the consumer. In its answer, the manufacturer asserted a third-party complaint against the product designer, also incorporated and with its principal place of business in State B. Believing that the consumer had sued the wrong defendant, the manufacturer claimed both that the designer was solely responsible for the flaw that had led to the consumer’s injuries and that the manufacturer was not at fault. The designer is aware that the manufacturer did not follow all of the designer’s specifications when making the product.

Which of the following arguments is most likely to achieve the designer’s goal of dismissal of the third-party complaint?


A. The court does not have subject-matter jurisdiction over the third-party complaint, because both the manufacturer and the designer are citizens of State
B.The manufacturer failed to obtain the court’s leave to file the third-party complaint.
C. The manufacturer’s failure to follow the designer’s specifications caused the flaw that resulted in the consumer’s injuries.
D. The manufacturer’s third-party complaint failed to state a proper third-party claim.

Answer choice D is correct. Rule 14 sets out the rules governing impleader (third-party claims). Third-party claims are claims that are made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim. In this case, the manufacturer’s third-party complaint alleged that the designer was responsible for the flaw and that the manufacturer was not at fault. The manufacturer’s claim against the designer was not based on an assertion that the designer would be liable to the manufacturer for the manufacturer’s liability on the consumer’s claim. Rather, the manufacturer argued that he was not at fault and the consumer sued the wrong defendant. Because the manufacturer did not claim the designer would be liable to it on the basis of indemnification or contribution if the manufacturer was found liable to the consumer, the manufacturer has failed to state a proper third-party claim.

I don't understand this -- how is alleging that the manufacturer is solely responsible for the flaw not the same as alleging that a nonparty is responsible for the Defendant's liability?

I remember this question. It's tricky. The issue is that impleader is used for ONLY contribution and indemnification. Here, the manufacturer sought to use impleader as a switcheroo type device. That is, switching the designer in place of the manufacturer. That isn't contribution or indemnification. To put it differently, the manufacturers claim is that its "not at fault". That's just wrong as a matter of law. In product liabilities, the manufacturer is liable and is at fault. It can indemnify itself though. But this isn't the same as not being at fault to begin with.

Since the manufacturer's imp leader claim essentially was "you got the wrong guy, I'm not liable, sue this person instead", instead of "if I'm liable then you owe me money", its not a proper impleader

Okay, I think that makes sense to me. So even if the manufacturer's claim is effectively claiming that the designer is liable via contribution or indemnification, a defendant must actually expressly state such a claim in the third party complaint rather than allude to it?

The relevant distinction here isn't the express claim about designer's liability, it's more the manufacturer's assertion about it own liability. If the manufacturer's claim was "okay, fine, but if I'm liable, then designer owes me money" that would be proper for impleader. But instead the manufacturer's legal theory is "I'm not legally liable at all! You've got the wrong guy, you should just be suing the designer." That's NOT proper for impleader, because it's not a contribution/indemnification claim, the manufacturer is trying to weasel himself out of the chain entirely.

[anon sequitur]

Just got back all 8 of my graded essays in the last 24 hours (I hadn't done any actual essays until Monday and Tuesday). I had really low expectations, and they were slightly surpassed! The comments were fairly helpful.

[GULCPerson]

Just got back all 8 of my graded essays in the last 24 hours (I hadn't done any actual essays until Monday and Tuesday). I had really low expectations, and they were slightly surpassed! The comments were fairly helpful.

Congrats.

Just curious, was there a general upward trend in scores? I submitted my first 7 graded essays on time, and got a 6/10 on every single one. The ones that I thought were really solid compared to the model, where the only comment was "good job," 6/10. The ones that were awful with comments like "this isn't correct at all, see the model answer", 6/10. Then on the very last one, returned today, I got an 8/10 with a note about how much I've improved, even though I know it was one of my weaker essays and I got two of the substantive issues completely backwards. I have no faith in the honesty of my grader.

[anon sequitur]

Congrats.

Just curious, was there a general upward trend in scores? I submitted my first 7 graded essays on time, and got a 6/10 on every single one. The ones that I thought were really solid compared to the model, where the only comment was "good job," 6/10. The ones that were awful with comments like "this isn't correct at all, see the model answer", 6/10. Then on the very last one, returned today, I got an 8/10 with a note about how much I've improved, even though I know it was one of my weaker essays and I got two of the substantive issues completely backwards. I have no faith in the honesty of my grader.

The comments were pretty terse, things like "you writing could be much more concise, trying outlining more" (I don't outline at all), and "you got the rule wrong here, but good logical analysis so you still get points", but there was at least some comment and a grade for each sub-question, e.g. 2.5/4. I got 6's, 7's and one 8, which was also the last essay, along with an encouraging note something like "you do a good job of making things up when you don't know the rule".

I really don't think getting the rule backwards is that bad, or should lead to a low grade necessarily. For example, if you wrote a whole subsection about how under the FRCP the federal courts apply state procedural law and federal substantive law, you're obviously not going to get full credit. But if by doing that you show that you know the difference between the two, and that it's an important issue that the court needs to decide, the fact that you thought it was one way rather than the other isn't gonna prevent you from getting a decent grade (at least, that's what I've been lead to believe, and I honestly have to believe it otherwise only braniacs with total recall would pass the bar).

[smalogna]

First morning acclamating my body to 6am wake up. Ughhhhhhh.

[smalogna]

Plain english distinction between res judicata and issue preclusion?

[lilypad144]

I always thought that if an original contracting party assigns his rights under a contract, that he is no longer liable on the contract because he transferred his full obligation and duties under the contract and that for a delegation, he is still liable. Is that incorrect?? I just got a super confusing MBE question -

[+] Spoiler

An exterminator, who has been in the exterminating business for fifteen years and has a fine reputation, contracts to provide services to a clothing shop with a moth infestation. The contract has no provision regarding assignment.

If the exterminator assigns the contract to the contractor and thereafter the contractor does not meet the contract specifications in providing services to the clothing shop, the shop owner

A. has a cause of action against the exterminator for damages.

B. has a cause of action only against the contractor for damages.

C. has a cause of action against the exterminator for damages only after he has first exhausted his remedies against the contractor.

D. does not have a cause of action against the exterminator for damages, because he waived his rights against the exterminator by permitting the contractor to perform the work.

Answer choice A is correct. In either an assignment or a delegation, the assignor or delegator is not released from liability and recovery can be had against him if performance is not made. Here, the exterminator is not released from liability.

Can someone explain this to me?

[BelugaWhale]

I always thought that if an original contracting party assigns his rights under a contract, that he is no longer liable on the contract because he transferred his full obligation and duties under the contract and that for a delegation, he is still liable. Is that incorrect?? I just got a super confusing MBE question -

[+] Spoiler

An exterminator, who has been in the exterminating business for fifteen years and has a fine reputation, contracts to provide services to a clothing shop with a moth infestation. The contract has no provision regarding assignment.

If the exterminator assigns the contract to the contractor and thereafter the contractor does not meet the contract specifications in providing services to the clothing shop, the shop owner

A. has a cause of action against the exterminator for damages.

B. has a cause of action only against the contractor for damages.

C. has a cause of action against the exterminator for damages only after he has first exhausted his remedies against the contractor.

D. does not have a cause of action against the exterminator for damages, because he waived his rights against the exterminator by permitting the contractor to perform the work.

Answer choice A is correct. In either an assignment or a delegation, the assignor or delegator is not released from liability and recovery can be had against him if performance is not made. Here, the exterminator is not released from liability.

Can someone explain this to me?

Yeah, assignment doesnt get rid of your obligation unless you get a novation. So I think you just got the rule wrong