Themis Bar Review Hangout - July 2016 Forum

[Easy-E]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

[ndp1234]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? Ugh.

Majority (Cardozo) - Foreeseeable victim is part of the Duty/Breach analysis. Foreseeable harm should form part of the Prox. Cause discussion, not duty question. (i.e. there is a duty to a rescuer, who is a foreseeable victim)
Minority (Andrews) - Foreseeable harm is part of the Duty/Breach analysis. D had a duty because the harm was foreseeable, not just the victim.

From the Q's I've seen so far, the call of the question will tell you which jurisdiction you're in.

Hope this helps.

***Disclaimer: I do not claim to be an expert in Torts***

[Easy-E]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? Ugh.

Majority (Cardozo) - Foreeseeable victim is part of the Duty/Breach analysis. Foreseeable harm should form part of the Prox. Cause discussion, not duty question. (i.e. there is a duty to a rescuer, who is a foreseeable victim)
Minority (Andrews) - Foreseeable harm is part of the Duty/Breach analysis. D had a duty because the harm was foreseeable, not just the victim.

From the Q's I've seen so far, the call of the question will tell you which jurisdiction you're in.

Hope this helps.

***Disclaimer: I do not claim to be an expert in Torts***

I guess I just haven't seen a PQ where it specified the jurisdiction in this regard. I was confused about where it fit into my analysis of negligence issues, but this makes some sense now. Thanks.

[ndp1234]

Hey Guys - Angry about another Themis PQ from Torts MBE PQs Session 4 about the janitor and the treadmill:

[+] Spoiler

Every morning, a janitor at a gym cleaned all of the workout equipment, including the treadmills, using a disinfectant spray. One morning, the janitor was especially tired because he had been up late the night before. As a result, he was careless with the disinfectant spray, using too much and then not wiping it off adequately. A woman stepped onto one of the treadmills right after the janitor had cleaned it and turned it on. As the running belt started to move, the woman’s foot slipped because of the excess disinfectant spray. She fell off the treadmill and broke her nose. The woman, who was a master whiskey taster, was scheduled to judge a whiskey competition that evening. However, due to her broken nose, the woman was unable to adequately smell or taste the whiskeys. The competition was cancelled and the liquor company that hosted it lost thousands of dollars. The liquor company sued the gym under a theory of vicarious liability to recover its losses.
Will the liquor company prevail? Answer: No, because the company has only suffered economic harm.

Why is the broken nose, not sufficient to overcome the pure economic harm issue? I suspect it's because medical damages were not mentioned, but they also were not explicitly excluded from the question - this was another unfair question.

[mak_]

Hey Guys - Angry about another Themis PQ from Torts MBE PQs Session 4 about the janitor and the treadmill:

[+] Spoiler

Every morning, a janitor at a gym cleaned all of the workout equipment, including the treadmills, using a disinfectant spray. One morning, the janitor was especially tired because he had been up late the night before. As a result, he was careless with the disinfectant spray, using too much and then not wiping it off adequately. A woman stepped onto one of the treadmills right after the janitor had cleaned it and turned it on. As the running belt started to move, the woman’s foot slipped because of the excess disinfectant spray. She fell off the treadmill and broke her nose. The woman, who was a master whiskey taster, was scheduled to judge a whiskey competition that evening. However, due to her broken nose, the woman was unable to adequately smell or taste the whiskeys. The competition was cancelled and the liquor company that hosted it lost thousands of dollars. The liquor company sued the gym under a theory of vicarious liability to recover its losses.
Will the liquor company prevail? Answer: No, because the company has only suffered economic harm.

Why is the broken nose, not sufficient to overcome the pure economic harm issue? I suspect it's because medical damages were not mentioned, but they also were not explicitly excluded from the question - this was another unfair question.

[+] Spoiler

Because it was the liquor company suing. The liquor company itself only suffered economic harm.

[ndp1234]

Hey Guys - Angry about another Themis PQ from Torts MBE PQs Session 4 about the janitor and the treadmill:

[+] Spoiler

Every morning, a janitor at a gym cleaned all of the workout equipment, including the treadmills, using a disinfectant spray. One morning, the janitor was especially tired because he had been up late the night before. As a result, he was careless with the disinfectant spray, using too much and then not wiping it off adequately. A woman stepped onto one of the treadmills right after the janitor had cleaned it and turned it on. As the running belt started to move, the woman’s foot slipped because of the excess disinfectant spray. She fell off the treadmill and broke her nose. The woman, who was a master whiskey taster, was scheduled to judge a whiskey competition that evening. However, due to her broken nose, the woman was unable to adequately smell or taste the whiskeys. The competition was cancelled and the liquor company that hosted it lost thousands of dollars. The liquor company sued the gym under a theory of vicarious liability to recover its losses.
Will the liquor company prevail? Answer: No, because the company has only suffered economic harm.

Why is the broken nose, not sufficient to overcome the pure economic harm issue? I suspect it's because medical damages were not mentioned, but they also were not explicitly excluded from the question - this was another unfair question.

[+] Spoiler

Because it was the liquor company suing. The liquor company itself only suffered economic harm.

OOOHHH - Thanks mak! I feel like an idiot that I missed that!

[cleanhustle]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

I saw your earlier post about shitting the bed on this essay. Just wanted to say that I did too. I totally missed the point of the Cardozo/Andrews assessment and the grader told me I basically didn't know the law well and it showed... and that this "simply cannot happen". Ouch.

So my confidence is rather low and I"m feeling a lot of self-doubt. I think this is part of the process. I did spend the whole morning going through Negligence and spoon feeding myself but I guess I need to spend more time studying "actively" because he was right-- I haven't really memorized the law/really put much effort into seeing the big picture.

Just wanted to share and say chin up. We have a long road but that's a good thing-- more time to get these things down correctly.

[ultimolugar]

I don't really understand why, but Evidence is by far the most boring subject covered thus far. Even K's and Real Property/Personal Property was more engaging.

I thought Evidence was actually neat. Civil Procedure tho...

I took Evidence last semester. I think the fact that so much of the lecture material was so fresh in my brain made me want to drown myself, whereas a lot of stuff in K's or Real Property were things I vaguely remembered but couldn't narrow down to specifics. But because I'm terrified of failure, I still followed along with the Evidence lecture and filled out the handout, even tho I could have probably skipped half of it and been completely fine.

Good call, the last thing you need after the fact is a regret.

[ultimolugar]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

Cardozo - only foreseeable plaintiffs have a cause of action
Andrews - ANYONE can have a cause of action

[ultimolugar]

Does anyone have to do family law in your given jurisdiction? It only appears as an essay topic in Florida, and that's not even a guarantee. The reason I ask is because I totally did not give one iota of a fuck and bombed the Family Law MC (which is hilarious because its a REALLY subjective area of the law - at least to me).

[bsktbll28082]

Does anyone have to do family law in your given jurisdiction? It only appears as an essay topic in Florida, and that's not even a guarantee. The reason I ask is because I totally did not give one iota of a fuck and bombed the Family Law MC (which is hilarious because its a REALLY subjective area of the law - at least to me).

Virginia has domestic relations as an essay topic.

[Chardee_MacDennis]

Does anyone have to do family law in your given jurisdiction? It only appears as an essay topic in Florida, and that's not even a guarantee. The reason I ask is because I totally did not give one iota of a fuck and bombed the Family Law MC (which is hilarious because its a REALLY subjective area of the law - at least to me).

It's only an essay topic in IL.

[Easy-E]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

Cardozo - only foreseeable plaintiffs have a cause of action
Andrews - ANYONE can have a cause of action

So here's my problem. I understand what the two views actually are, and the difference between them. I just don't see when they fit into a negligence analysis. I'm looking at the sample answer for the torts graded essay, and I've never seen a PQ referring to jurisdiction in this regard.

[+] Spoiler

So the graded essay had three defendants all with some special duty (possessor of land, emergency situation, psychotherapist. Does it only come in when you have no special duty imposed, and all you have some action and a seemingly far away harm? It sounds like proximate cause being tied up with duty.

[Nebby]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

Cardozo - only foreseeable plaintiffs have a cause of action
Andrews - ANYONE can have a cause of action

So here's my problem. I understand what the two views actually are, and the difference between them. I just don't see when they fit into a negligence analysis. I'm looking at the sample answer for the torts graded essay, and I've never seen a PQ referring to jurisdiction in this regard.

[+] Spoiler

So the graded essay had three defendants all with some special duty (possessor of land, emergency situation, psychotherapist. Does it only come in when you have no special duty imposed, and all you have some action and a seemingly far away harm? It sounds like proximate cause being tied up with duty.

I just did a torts practice essay on negligence and spent a paragraph on a duty analysis (under the majority and minority view) and the sample essay did not do this at all, but rather assumed a duty exists and just focused on whether it is breached.

[Easy-E]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

Cardozo - only foreseeable plaintiffs have a cause of action
Andrews - ANYONE can have a cause of action

So here's my problem. I understand what the two views actually are, and the difference between them. I just don't see when they fit into a negligence analysis. I'm looking at the sample answer for the torts graded essay, and I've never seen a PQ referring to jurisdiction in this regard.

[+] Spoiler

So the graded essay had three defendants all with some special duty (possessor of land, emergency situation, psychotherapist. Does it only come in when you have no special duty imposed, and all you have some action and a seemingly far away harm? It sounds like proximate cause being tied up with duty.

I just did a torts practice essay on negligence and spent a paragraph on a duty analysis (under the majority and minority view) and the sample essay did not do this at all, but rather assumed a duty exists and just focused on whether it is breached.

Exactly my problem: I don't fully understand when it should be discussed. And someone before said their grader dinged them for NOT mentioning it?

I think I understand why it isn't an issue for that essay (see spoiler). The only question I recall it coming up on was a PQ involving a driver hitting a pole, killing power to a neighborhood and a kid getting scared of the dark and running into the street. I haven't seen it applied in an essay yet, though I'm behind.

[Nebby]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

Cardozo - only foreseeable plaintiffs have a cause of action
Andrews - ANYONE can have a cause of action

So here's my problem. I understand what the two views actually are, and the difference between them. I just don't see when they fit into a negligence analysis. I'm looking at the sample answer for the torts graded essay, and I've never seen a PQ referring to jurisdiction in this regard.

[+] Spoiler

So the graded essay had three defendants all with some special duty (possessor of land, emergency situation, psychotherapist. Does it only come in when you have no special duty imposed, and all you have some action and a seemingly far away harm? It sounds like proximate cause being tied up with duty.

I just did a torts practice essay on negligence and spent a paragraph on a duty analysis (under the majority and minority view) and the sample essay did not do this at all, but rather assumed a duty exists and just focused on whether it is breached.

Exactly my problem: I don't fully understand when it should be discussed. And someone before said their grader dinged them for NOT mentioning it?

I think I understand why it isn't an issue for that essay (see spoiler). The only question I recall it coming up on was a PQ involving a driver hitting a pole, killing power to a neighborhood and a kid getting scared of the dark and running into the street. I haven't seen it applied in an essay yet, though I'm behind.

I dinged that one because of proximate causuation.

In reality it's all a bunch of bullshit concepts that merge together, and the practice essay I did just asked "whether a reasonable person in the shoes of the defendant could foresee the harm that befell the victim" and analyzed it that way without any discussion of duty.

[Easy-E]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

Cardozo - only foreseeable plaintiffs have a cause of action
Andrews - ANYONE can have a cause of action

So here's my problem. I understand what the two views actually are, and the difference between them. I just don't see when they fit into a negligence analysis. I'm looking at the sample answer for the torts graded essay, and I've never seen a PQ referring to jurisdiction in this regard.

[+] Spoiler

So the graded essay had three defendants all with some special duty (possessor of land, emergency situation, psychotherapist. Does it only come in when you have no special duty imposed, and all you have some action and a seemingly far away harm? It sounds like proximate cause being tied up with duty.

I just did a torts practice essay on negligence and spent a paragraph on a duty analysis (under the majority and minority view) and the sample essay did not do this at all, but rather assumed a duty exists and just focused on whether it is breached.

Exactly my problem: I don't fully understand when it should be discussed. And someone before said their grader dinged them for NOT mentioning it?

I think I understand why it isn't an issue for that essay (see spoiler). The only question I recall it coming up on was a PQ involving a driver hitting a pole, killing power to a neighborhood and a kid getting scared of the dark and running into the street. I haven't seen it applied in an essay yet, though I'm behind.

I dinged that one because of proximate causuation.

In reality it's all a bunch of bullshit concepts that merge together, and the practice essay I did just asked "whether a reasonable person in the shoes of the defendant could foresee the harm that befell the victim" and analyzed it that way without any discussion of duty.

So why the hell is it in my outline if it isn't BLL? It just seems like some confusing 1L bullshit about how the body of law developed, which is useless for the bar. Without spoiling it, did the PE you just did involve any kind of special relationship/duty?

Also, what do you mean when you "dinged that one because of proximate causation"?

Anyway, I sent Themis a message, I'll post the response.

[Nebby]

Reviewing torts because I've been struggling with it recently. I know this is a 1L question, but can someone just quickly make sense of the two views from Palsgraf? I get that they answer the question of "did D owe a duty of care to this P", but I do you always just apply both? I don't know why this isn't clicking anymore.

Cardozo - only foreseeable plaintiffs have a cause of action
Andrews - ANYONE can have a cause of action

So here's my problem. I understand what the two views actually are, and the difference between them. I just don't see when they fit into a negligence analysis. I'm looking at the sample answer for the torts graded essay, and I've never seen a PQ referring to jurisdiction in this regard.

[+] Spoiler

So the graded essay had three defendants all with some special duty (possessor of land, emergency situation, psychotherapist. Does it only come in when you have no special duty imposed, and all you have some action and a seemingly far away harm? It sounds like proximate cause being tied up with duty.

I just did a torts practice essay on negligence and spent a paragraph on a duty analysis (under the majority and minority view) and the sample essay did not do this at all, but rather assumed a duty exists and just focused on whether it is breached.

Exactly my problem: I don't fully understand when it should be discussed. And someone before said their grader dinged them for NOT mentioning it?

I think I understand why it isn't an issue for that essay (see spoiler). The only question I recall it coming up on was a PQ involving a driver hitting a pole, killing power to a neighborhood and a kid getting scared of the dark and running into the street. I haven't seen it applied in an essay yet, though I'm behind.

I dinged that one because of proximate causuation.

In reality it's all a bunch of bullshit concepts that merge together, and the practice essay I did just asked "whether a reasonable person in the shoes of the defendant could foresee the harm that befell the victim" and analyzed it that way without any discussion of duty.

So why the hell is it in my outline if it isn't BLL? It just seems like some confusing 1L bullshit about how the body of law developed, which is useless for the bar. Without spoiling it, did the PE you just did involve any kind of special relationship/duty?

Also, what do you mean when you "dinged that one because of proximate causation"?

Anyway, I sent Themis a message, I'll post the response.

In my head I thought "that seems too remote to satisfy proximate causation." Therefore I knew there wasn't negligence, but (if I remember correctly) proximate cause wasn't a reason for why negligence didn't occur, and assumed duty was the best answer since whether something is foreseeable is similar to whether proximate cause exists. That's why the duty stuff is kinda dumb, since whether a victim is reasonably foreseeable depends on, among other things, how remote the casual chain is.

[rambleon65]

Anyone a bit frustrated that Themis (i don't think BarBri does either) doesn't leave time for you to do your own studying per day? I'm trying to start memorizing the elements by outlining (what I did all three years of law school) because all the practice q's I miss are due to just not remembering the elements. I feel like if I put my time for the scheduled activities, I barely have time to memorize on my own.

[Chardee_MacDennis]

Anyone a bit frustrated that Themis (i don't think BarBri does either) doesn't leave time for you to do your own studying per day? I'm trying to start memorizing the elements by outlining (what I did all three years of law school) because all the practice q's I miss are due to just not remembering the elements. I feel like if I put my time for the scheduled activities, I barely have time to memorize on my own.

I suppose you can do that when the schedule says "Review X Outlines, Notes, etc..."

[Nebby]

FUCK YOU SOFTEST. I had to upload a mock exam to complete my computer registration, and softest froze while initiating the test. I had to manual power down the PC, and when it booted back up it immediately went back into softest mode. That's fine, it didn't freeze and I uploaded the mock exam.

But it fucked up the registry and partially closed down some background windows features. I restart, and it still has many background functions disabled with no way to revert.

And to top the trolling off, my background image became the softest logo!

Now I just restored my system and it's properly working again, but that's after losing an hour of study time....

[The Mixed Tape]

I don't really understand why, but Evidence is by far the most boring subject covered thus far. Even K's and Real Property/Personal Property was more engaging.

imo civpro is the most boring subject OF ALL TIME

[PotLuck]

I don't really understand why, but Evidence is by far the most boring subject covered thus far. Even K's and Real Property/Personal Property was more engaging.

imo civpro is the most boring subject OF ALL TIME

Agree, idk why but i have the hardest time with civ pro. Got a 50% on my last PQ session =|.

[Easy-E]

Ugh, I hate you contracts. Like this PQ (coquelicot t-shirts)

[+] Spoiler

A manufacturer of t-shirts contracted with a new clothing store to sell the store 1,000 t-shirts per month for a period of two years. The clothing store’s signature color for their clothing was an orange-tinted red color, called coquelicot, which is very difficult to replicate on a consistent basis. The contract specified that any t-shirts that were not coquelicot could be returned, but it was silent with regard to the return of any t-shirts for other reasons. One year into the contract, the store decided to switch to coquelicot-colored baseball hats instead of t-shirts. The store returned the most recent shipment of t-shirts to the manufacturer and demanded a refund. The manufacturer refused to grant the refund, and the store sued the manufacturer for damages. At trial, the manufacturer introduced the contract, which clearly stated that t-shirts that were not coquelicot could be returned. The store then attempted to introduce evidence that it had returned t-shirts for other reasons to the manufacturer in the past and received a refund.

Is this evidence admissible?


So the answer is that it's admissible as course-of-performance evidence. Not course-of-dealing. Why is there even a distinction between the two though? They function the exact same way, so why not just consider all conduct, whether under this contract or another, as admissible evidence? I understand why I was wrong, but that is just stupid.

[ndp1234]

Ugh, I hate you contracts. Like this PQ (coquelicot t-shirts)

[+] Spoiler

A manufacturer of t-shirts contracted with a new clothing store to sell the store 1,000 t-shirts per month for a period of two years. The clothing store’s signature color for their clothing was an orange-tinted red color, called coquelicot, which is very difficult to replicate on a consistent basis. The contract specified that any t-shirts that were not coquelicot could be returned, but it was silent with regard to the return of any t-shirts for other reasons. One year into the contract, the store decided to switch to coquelicot-colored baseball hats instead of t-shirts. The store returned the most recent shipment of t-shirts to the manufacturer and demanded a refund. The manufacturer refused to grant the refund, and the store sued the manufacturer for damages. At trial, the manufacturer introduced the contract, which clearly stated that t-shirts that were not coquelicot could be returned. The store then attempted to introduce evidence that it had returned t-shirts for other reasons to the manufacturer in the past and received a refund.

Is this evidence admissible?


So the answer is that it's admissible as course-of-performance evidence. Not course-of-dealing. Why is there even a distinction between the two though? They function the exact same way, so why not just consider all conduct, whether under this contract or another, as admissible evidence? I understand why I was wrong, but that is just stupid.

Agreed. This last set was rough because there were tiny distinctions in almost every question. At least I now know what coquelicot means.