BarBri Bar Review Hangout - July 2016 (UBE -NY) Forum

[sublime]

FOund it, going to put it under spoiler. Please don't quote as I will edit it out in a few days if I remember:

[+] Spoiler

A city has an ordinance that makes it an offense, punishable by fine, for the owner of a dog to permit the dog to run unleashed on a public way.

A police officer observed a small dog running loose in the street. As he picked the dog up, the dog's owner, who was seated in her car lawfully parked on the curb, called out, "Oh, thank you Officer for returning Fido." The police officer asked the owner whether the dog was hers, and when she acknowledged ownership, he asked to see her driver's license. The owner gave her name and address, but she refused to produce a driver's license. The police officer then told her that if she didn't produce her driver's license then she would go to jail. The owner responded by saying, "Isn't this ridiculous?" The police officer took her by the arm and said, "Let's go. You are under arrest."

The owner cried out that the police officer was hurting her but he refused to release her arm, so she struck him with her free hand. The police officer then dragged the owner from her car, forced her into his squad car, and took her to the police station.

The incident took place on the street in front of the apartment where the owner and her aged father lived. The police officer did not know that the father had observed what took place from a window in the apartment.

If the owner's father asserts a claim against the police officer for intentional infliction of emotional distress, will he prevail?

A. Yes, because the police officer's acts caused the father severe emotional distress.
B. Yes, because the police officer's behavior was extreme and outrageous with respect to the dog owner.
C. No, because the police officer did not know that the father was watching.
D. No, because the father was not within the zone of physical danger.

C is the correct answer. The key sentence in the fact pattern is "The police officer did not know that the father had observed what took place from a window in the apartment." The elements of intentional infliction of emotional distress are: (1) the defendant's intentional (with purpose or knowledge to a substantial certainty) or reckless (2) extreme and outrageous conduct (3) which causes the plaintiff severe emotional distress. In bystander cases, the intent and causation requirements are satisfied if: (1) the plaintiff was present when the severe physical harm occurred to the other person, (2) the plaintiff was a close relative of the injured person, and (3) the defendant knew that the plaintiff was present and a close relative of the injured person. Here, the police officer did not know the father was present during his arrest of the woman; therefore, the officer could not have intended to inflict emotional distress on the father. Because the intent element is not satisfied, both A and B are incorrect. D is incorrect as it refers to a requirement for negligent infliction of emotional distress, and is irrelevant to this cause of action.

[LionelHutzJD]

There is no bystander recovery under IIED. IIED is an intentional tort. The two types of recovery under NIED are bystander and zone of danger.

[mvp99]

Awesome, thanks. Critical Pass card 6 also includes with NIED the element that D must know of P's relationship and that P is present so I'm going to conclude that it's also required for NIED.

[+] Spoiler

I also think Barbri's rule that if P "perceived the event by sight, hearing, [smell, touch, taste]" then thats is enough is pushing it a bit, but whatever...

[mvp99]

There is no bystander recovery under IIED. IIED is an intentional tort. The two types of recovery under NIED are bystander and zone of danger.

OH MY GOD, you're right.. and there is no transfer intent for IIED. Could it be because in IIED recklessness suffices?

Rereading Sublime's post I think that's correct--there can be bystander recovery in IIED because "The intent and causation requirement are met blahblah" I bet this bystander shit came from some fiction created by a court on hindsight so it doesn't make much sense and doesn't fit neatly with NIED or IIED.

[LionelHutzJD]

There is no bystander recovery under IIED. IIED is an intentional tort. The two types of recovery under NIED are bystander and zone of danger.

OH MY GOD, you're right.. and there is no transfer intent for IIED. Could it be because in IIED recklessness suffices?

Rereading Sublime's post I think that's correct--there can be bystander recovery in IIED because "The intent and causation requirement are met blahblah" I bet this bystander shit came from some fiction created by a court on hindsight so it doesn't make much sense and doesn't fit neatly with NIED or IIED.

Eh, now that I think about it , you can make an argument as a bystander under recklessness. But I think the bar examiners are pretty clear that bystander claims are only available under NIED.

[sublime]

But what about the adaptibar question though?

[Bacon]

Sorry to create such a fuss over this very specific type of question, in reality it may be 1% of our bar exam. However, it just seems silly not to get this question right if its just a matter of remembering that the "knowing" element does or doesn't matter.

So if you look in the barbri "outlines for multistate" AKA the "MS" it has bystander under both NIED (page 56-57) and IIED (page 10-11). I think this clears a lot of it up.

Basically, I think the difference is that under IIED bystander claims, there is no physical harm requirement, because the D knows the bystander is right there watching, therefore the law punishes the D for this intentional act. However, in NIED bystander claims, there is some elevated physical harm requirement, because the D doesn't know that the bystander is watching, therefore the law cuts the D some form of break because the D didn't know, and it's not that foreseeable that some relative may so happen to be watching.

This is my understanding at least, and how I connect the dots in my head.

[LionelHutzJD]

Sorry to create such a fuss over this very specific type of question, in reality it may be 1% of our bar exam. However, it just seems silly not to get this question right if its just a matter of remembering that the "knowing" element does or doesn't matter.

So if you look in the barbri "outlines for multistate" AKA the "MS" it has bystander under both NIED (page 56-57) and IIED (page 10-11). I think this clears a lot of it up.

Basically, I think the difference is that under IIED bystander claims, there is no physical harm requirement, because the D knows the bystander is right there watching, therefore the law punishes the D for this intentional act. However, in NIED bystander claims, there is some elevated physical harm requirement, because the D doesn't know that the bystander is watching, therefore the law cuts the D some form of break because the D didn't know, and it's not that foreseeable that some relative may so happen to be watching.

This is my understanding at least, and how I connect the dots in my head.

But isn't the whole point of being liable under NIED for bystanders is that IT IS foreseeable? Also weren't some of the posts saying that one of the elements is that the D be aware of the close relationship?

[Bacon]

Sorry to create such a fuss over this very specific type of question, in reality it may be 1% of our bar exam. However, it just seems silly not to get this question right if its just a matter of remembering that the "knowing" element does or doesn't matter.

So if you look in the barbri "outlines for multistate" AKA the "MS" it has bystander under both NIED (page 56-57) and IIED (page 10-11). I think this clears a lot of it up.

Basically, I think the difference is that under IIED bystander claims, there is no physical harm requirement, because the D knows the bystander is right there watching, therefore the law punishes the D for this intentional act. However, in NIED bystander claims, there is some elevated physical harm requirement, because the D doesn't know that the bystander is watching, therefore the law cuts the D some form of break because the D didn't know, and it's not that foreseeable that some relative may so happen to be watching.

This is my understanding at least, and how I connect the dots in my head.

But isn't the whole point of being liable under NIED for bystanders is that IT IS foreseeable? Also weren't some of the posts saying that one of the elements is that the D be aware of the close relationship?

I mean I'm just trying to square the circle with that question in set 16 of barbri against the adaptibar question. Some of the above posts (mine included) required the D awareness element, which is true for IIED bystander, but not for NIED. To be honest, before reading the MS, I had no clue there even were NIED bystander claims.

[+] Spoiler

Regarding foreseeability: how is it foreseeable for the bank to know that the husband will just walk into the bank while the wife is being hurt? Or in adaptibar, how is it foreseeable that the father of the injured daughter would so happen to live on the block and looking at the window while the police officer's conduct took place? I think basically what I mean is that because it is sort of arguably foreseeable, the negligence bystander claims require a bit more harm to the P than do the intentional bystander claims.

Here is the language on page 10-11 in barbri's MS (IIED bystander):
1) the P was present when the injury occurred to the other person
2) the P was a close relative of the injured person and
3) the D knew that the P was present and a close relative of the injured person
Damages - It is not necessary to prove physical injuries to recover, however, it is necessary to establish severe emotional distress

Here is the language on page 56-57 in barbri's MS (NIED bystander not in the zone of danger):
Traditionally, a bystander outside the zone of danger of physical injury who sees the D negligently injuring another could not recover damages for her own distress. Now this is allowed, so long as:
1) the P and the person injured by the D are closely related
2) the P was present at the scene of the injury and
3) the P personally observed or perceived the event
Damages - most of the states still require physical symptoms, but the modern trend is to drop this requirement

So what I'm thinking, is that for negligence bystander claims, more injury is required than for intentional bystander claims, because the D's conduct is more ridiculous.

[Br3v]

You guys stress me out, I gave NIED and IIED pretty much only a passing glance

[Bacon]

You guys stress me out, I gave NIED and IIED pretty much only a passing glance

Haha I'm sorry, I did the same thing and didn't think twice about it until this barbri question. But I can use every point I can get in torts to offset property...

[wwwcol]

I thought I understood permissive counterclaims and when you could bring a counterclaim arising out of a different T/O until one of the recent Barbri question sets. Now, I am wondering if the statements below, from my notes, are totally wrong/made up?

Is the rule that you can bring a counterclaim arising out of a different T/O if there is an independent basis for SMJ (diversity or fed ?), BUT the ct. has discretion to dismiss the permissive counterclaim? And if there is not an independent basis for SMJ (ie the Ct. would have to exercise supplemental jdx), the counterclaim has to arise out of the same T/O.

[jj252525]

From today's crim set

[+] Spoiler

Didn't realize wearing flashing clothes despite not having a job grounds probable cause.

[ballouttacontrol]

I thought I understood permissive counterclaims and when you could bring a counterclaim arising out of a different T/O until one of the recent Barbri question sets. Now, I am wondering if the statements below, from my notes, are totally wrong/made up?

Is the rule that you can bring a counterclaim arising out of a different T/O if there is an independent basis for SMJ (diversity or fed ?), BUT the ct. has discretion to dismiss the permissive counterclaim? And if there is not an independent basis for SMJ (ie the Ct. would have to exercise supplemental jdx), the counterclaim has to arise out of the same T/O.

Same t/O is compulsory, different t/O is permissive. Every claim needs SMJ

Didn't know that court has discretion to dismiss permissive counterclaims though. Is that right?

[sublime]

I thought I understood permissive counterclaims and when you could bring a counterclaim arising out of a different T/O until one of the recent Barbri question sets. Now, I am wondering if the statements below, from my notes, are totally wrong/made up?

Is the rule that you can bring a counterclaim arising out of a different T/O if there is an independent basis for SMJ (diversity or fed ?), BUT the ct. has discretion to dismiss the permissive counterclaim? And if there is not an independent basis for SMJ (ie the Ct. would have to exercise supplemental jdx), the counterclaim has to arise out of the same T/O.

Same t/O is compulsory, different t/O is permissive. Every claim needs SMJ

Didn't know that court has discretion to dismiss permissive counterclaims though. Is that right?

Pretty sure it is.

[ArtistOfManliness]

I thought I understood permissive counterclaims and when you could bring a counterclaim arising out of a different T/O until one of the recent Barbri question sets. Now, I am wondering if the statements below, from my notes, are totally wrong/made up?

Is the rule that you can bring a counterclaim arising out of a different T/O if there is an independent basis for SMJ (diversity or fed ?), BUT the ct. has discretion to dismiss the permissive counterclaim? And if there is not an independent basis for SMJ (ie the Ct. would have to exercise supplemental jdx), the counterclaim has to arise out of the same T/O.

Same t/O is compulsory, different t/O is permissive. Every claim needs SMJ

Didn't know that court has discretion to dismiss permissive counterclaims though. Is that right?

Pretty sure it is.

+1

[MCFC]

So if we're all caught up on everything, we're still only 63% of the way done? That's a lot of stuff to cram into the next two weeks.

[sublime]

Fuck this dude for not giving a handout (and stretching fam law to 3.5 hours). I'm just kinda reading a long in an outline. Fuck taking notes.


And yea MCFC, I am actually kinda worried about it, Esp bc I would like to do some adaptibar shit too.

[mvp99]

I'm BSing family law

Found this table showing the subject frequency on the bar exam: http://www.excellenceinlawschool.com/mu ... ncy-chart/

[LionelHutzJD]

Palmer''s Con Law Sim MBE review is clutch city

[LionelHutzJD]

I'm BSing family law

Found this table showing the subject frequency on the bar exam: http://www.excellenceinlawschool.com/mu ... ncy-chart/

+1

Do we know what was tested in Feb 2016?

[squiggle]

I'm BSing family law

Found this table showing the subject frequency on the bar exam: http://www.excellenceinlawschool.com/mu ... ncy-chart/

+1

Do we know what was tested in Feb 2016?

Here are the February 16 MEE Essay and MN's model's answer: https://www.ble.state.mn.us/file/Februa ... nswers.pdf

And here are the older MEE essays and model answers, in case anyone is interested: https://www.ble.state.mn.us/resource-ce ... swers.aspx

[Br3v]

So if we're all caught up on everything, we're still only 63% of the way done? That's a lot of stuff to cram into the next two weeks.

37% of the work left, not material (I think).

Looks like the next 2.5 weeks are just cram sessions review.

[MCFC]

So if we're all caught up on everything, we're still only 63% of the way done? That's a lot of stuff to cram into the next two weeks.

37% of the work left, not material (I think).

Looks like the next 2.5 weeks are just cram sessions review.

Sure, a lot of it is "Review Lecture Notes" or writing out essays, which, being real, I'll probably skip or half-ass. But still!

[mvp99]

So if we're all caught up on everything, we're still only 63% of the way done? That's a lot of stuff to cram into the next two weeks.

37% of the work left, not material (I think).

Looks like the next 2.5 weeks are just cram sessions review.

Sure, a lot of it is "Review Lecture Notes" or writing out essays, which, being real, I'll probably skip or half-ass. But still!

I'll use adaptibar instead of "reviewing lecture notes"