BarBri Bar Review Hangout - July 2015 Exam Forum

[Good Guy Gaud]

So you can assume the risk by, say, jumping in to the tiger cage knowing full well a tiger is in there? Or you can assume the risk by walking in to the blasting site if you know what's there? Just want to make sure I understand.

I think the answer to both questions is yes.

[+] Spoiler

eg., there was one practice question where a county employee (like an OSHA guy or some crap like that) was out examining the safety of a blasting site and became injured from a blast and the answer was that he assumed the risk.

there was also another question (stop reading if you haven't done the NCBE sample Q's) where a neighbor new the homeowner had 4 german shepard guard dogs and still hopped over the fence to get his shovel and the answer was that the homeowner was not liable because the neighbor new of the dogs (presumably, because he "assumed the risk")

ETA: scooped

[kyle010723]

Although I guess AoR can work with products too. If you have a chemical that is extremely flammable and it is written all over saying warning warning do not use near an open flame, and Plaintiff nevertheless lid a lighter next to it, Defendant can probably argue AoR.

[kykiske]

Although I guess AoR can work with products too. If you have a chemical that is extremely flammable and it is written all over saying warning warning do not use near an open flame, and Plaintiff nevertheless lid a lighter next to it, Defendant can probably argue AoR.

But under a strict liability context, wouldn't the manufacturer still be found liable if it was "foreseeable" that the plaintiff could misuse the chemical?

[charlesxavier]

Unlikely to be tested but: for abnormally dangerous activities, in my notes I had something about them not being common to the area. Does that mean if something has historically been done somewhere on a consistent basis it won't be strict liability?

[brotherdarkness]

Unlikely to be tested but: for abnormally dangerous activities, in my notes I had something about them not being common to the area. Does that mean if something has historically been done somewhere on a consistent basis it won't be strict liability?

If it's common, it's not really "abnormally" dangerous.

[Good Guy Gaud]

Another question:

Jurisdiction has j/s liability and comparative negligence. P gets into car accident with D and has $100k of damages. Jury determines P 10% at fault while D is 90% at fault.

What does P recover? Is it still the $100k? If so, when does his comparative negligence, if ever, offset the amount?

[kyle010723]

Although I guess AoR can work with products too. If you have a chemical that is extremely flammable and it is written all over saying warning warning do not use near an open flame, and Plaintiff nevertheless lid a lighter next to it, Defendant can probably argue AoR.

But under a strict liability context, wouldn't the manufacturer still be found liable if it was "foreseeable" that the plaintiff could misuse the chemical?

That's what I'm saying. In that case it wouldn't be misuse, it would be assumption of risk. We are not rebutting the prima facie case, but rather asserting a defense.

[robinhoodOO]

Although I guess AoR can work with products too. If you have a chemical that is extremely flammable and it is written all over saying warning warning do not use near an open flame, and Plaintiff nevertheless lid a lighter next to it, Defendant can probably argue AoR.

But under a strict liability context, wouldn't the manufacturer still be found liable if it was "foreseeable" that the plaintiff could misuse the chemical?

That's what I'm saying. In that case it wouldn't be misuse, it would be assumption of risk. We are not rebutting the prima facie case, but rather asserting a defense.

It would permit them to reduce damages for comparative negligence, yes, but not an absolute defense like misuse.

[charlesxavier]

Unlikely to be tested but: for abnormally dangerous activities, in my notes I had something about them not being common to the area. Does that mean if something has historically been done somewhere on a consistent basis it won't be strict liability?

If it's common, it's not really "abnormally" dangerous.

I thought "abnormally dangerous" referred to the inability to make it safe despite due care?

[kyle010723]

Another question:

Jurisdiction has j/s liability and comparative negligence. P gets into car accident with D and has $100k of damages. Jury determines P 10% at fault while D is 90% at fault.

What does P recover? Is it still the $100k? If so, when does his comparative negligence, if ever, offset the amount?

You reduce P's damage by the percent of P's fault. So P can recover $90,000 from D. And D can recover 10% of whatever his damage may be from P.

[felonious monk]

Anyone else feeling really burnt out?

I don't know why i'm losing my drive right now -- just glad it's now not next week - hopefully it will pass.

Also - -i'm looking at random essay questions and able to cobble together coherent answers for pretty much all of them. Not top "above passing" answers, but i'm spotting issues and getting enough down to pass comfortably. This is good, and bad. I don't want to go in confident. I want to go in shitting it thinking 'f**k yeah I'm the underdog, but you know what, bring it on - I will take you".

Just me?

[Tiago Splitter]

Unlikely to be tested but: for abnormally dangerous activities, in my notes I had something about them not being common to the area. Does that mean if something has historically been done somewhere on a consistent basis it won't be strict liability?

If it's common, it's not really "abnormally" dangerous.

I thought "abnormally dangerous" referred to the inability to make it safe despite due care?

It's both. Can't make it safe and not common to the area.

[charlesxavier]

Unlikely to be tested but: for abnormally dangerous activities, in my notes I had something about them not being common to the area. Does that mean if something has historically been done somewhere on a consistent basis it won't be strict liability?

If it's common, it's not really "abnormally" dangerous.

I thought "abnormally dangerous" referred to the inability to make it safe despite due care?

It's both. Can't make it safe and not common to the area.

Any idea what that looks like? The only thing I could think of was blasting in a mining town.

[felonious monk]

Unlikely to be tested but: for abnormally dangerous activities, in my notes I had something about them not being common to the area. Does that mean if something has historically been done somewhere on a consistent basis it won't be strict liability?

If it's common, it's not really "abnormally" dangerous.

I thought "abnormally dangerous" referred to the inability to make it safe despite due care?

It's both. Can't make it safe and not common to the area.

Any idea what that looks like? The only thing I could think of was blasting in a mining town.

Transporting nuclear waste, but only if the damage is caused b/c of the abnormally dangerous activity (e.g. if there's just a car accident it's not abnormally dangerous, but if as a result of the car accident the waste escapes and radiates people, that is abnormally dangerous).

[kyle010723]

Any idea what that looks like? The only thing I could think of was blasting in a mining town.

Transporting nuclear waste, but only if the damage is caused b/c of the abnormally dangerous activity (e.g. if there's just a car accident it's not abnormally dangerous, but if as a result of the car accident the waste escapes and radiates people, that is abnormally dangerous).

But what if the truck transferring nuclear waste lost control and crashed into someone's yard where pet rattlesnakes were kept...

[RaleighStClair]

Any idea what that looks like? The only thing I could think of was blasting in a mining town.

Transporting nuclear waste, but only if the damage is caused b/c of the abnormally dangerous activity (e.g. if there's just a car accident it's not abnormally dangerous, but if as a result of the car accident the waste escapes and radiates people, that is abnormally dangerous).

But what if the truck transferring nuclear waste lost control and crashed into someone's yard where pet rattlesnakes were kept...

Hahah. Were those rattlesnakes domesticated?

[felonious monk]

Any idea what that looks like? The only thing I could think of was blasting in a mining town.

Transporting nuclear waste, but only if the damage is caused b/c of the abnormally dangerous activity (e.g. if there's just a car accident it's not abnormally dangerous, but if as a result of the car accident the waste escapes and radiates people, that is abnormally dangerous).

But what if the truck transferring nuclear waste lost control and crashed into someone's yard where pet rattlesnakes were kept...

Heh.

Domestic or wild?

[charlesxavier]

Unlikely to be tested but: for abnormally dangerous activities, in my notes I had something about them not being common to the area. Does that mean if something has historically been done somewhere on a consistent basis it won't be strict liability?

If it's common, it's not really "abnormally" dangerous.

I thought "abnormally dangerous" referred to the inability to make it safe despite due care?

It's both. Can't make it safe and not common to the area.

Any idea what that looks like? The only thing I could think of was blasting in a mining town.

Transporting nuclear waste, but only if the damage is caused b/c of the abnormally dangerous activity (e.g. if there's just a car accident it's not abnormally dangerous, but if as a result of the car accident the waste escapes and radiates people, that is abnormally dangerous).

But there is strict liability for transporting nuclear waste if the damage is the result of the dangerous condition, right? I'm trying to find an example of where there wouldn't be strict liability for an activity because it is common to an area despite the fact that it can't be done safely.

[kyle010723]

But what if the truck transferring nuclear waste lost control and crashed into someone's yard where pet rattlesnakes were kept...

Hahah. Were those rattlesnakes domesticated?

Oh why yes!! They are the nicest rattlesnakes! The homeowner would offer testimonies from 50 clergy who will all testify that the rattlesnake are always calm and friendly!

[Kage3212]

Decided to do mix set 5 after hearing previous poster with such a high score. Got the first 4 out of 5 wrong. Lol.

[murray18]

But what if the truck transferring nuclear waste lost control and crashed into someone's yard where pet rattlesnakes were kept...

Hahah. Were those rattlesnakes domesticated?

Oh why yes!! They are the nicest rattlesnakes! The homeowner would offer testimonies from 50 clergy who will all testify that the rattlesnake are always calm and friendly!

Impermissible bolstering of the witness (read: I hate myself).

[kyle010723]

Decided to do mix set 5 after hearing previous poster with such a high score. Got the first 4 out of 5 wrong. Lol.

heh, trust me, that was way above my average too. But I would take a confidence boost wherever I can find one.

[brotherdarkness]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

[Kage3212]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

Not sure about that, I am fairly certain that vertical privity only requires a "non-hostile nexus." Thus, the only people who would not have vertical privity with a grantor would be an APer.

[Tiago Splitter]

But there is strict liability for transporting nuclear waste if the damage is the result of the dangerous condition, right? I'm trying to find an example of where there wouldn't be strict liability for an activity because it is common to an area despite the fact that it can't be done safely.

I wouldn't worry too much. You'll know it's abnormally dangerous, and when you write your essay you'll get two points for the rule. One for saying it can't be safe despite reasonable care, and one for saying it's not common to the area.

Another SL question: If the accident was not the result of the dangerous condition e.g. nuclear waste transportation truck gets in routine car accident, where do we show that the plaintiff can't win under strict liability? Is it that the dangerous condition was not a but-for cause of the accident?