Wednesday, April 27, 2011

Civ Pro E&E, FASFA, Taxes, Glasses

I need to get some signatures to file my amended tax returns.  After that, it's time to fill out my FASFA and wait to talk to financial aid about what sort of loans I can take out next year. 

I finally knocked out a couple of chapters in my Civ Pro E&E book today.  Took me a while to get around to it.  I bought some off the shelf reading glasses and they help.  I need reading glasses.  It was hard to read without them and I think it made me tired to do it.  I think I may need a milder prescription than what I bought, though.  Might try a few other ones.

It's May, now.  School starts the last part of August.  So, three and a half months and I'll be in the thick of it.  It's going to be strange to be grinding away, attending class, doing a mountain of reading, yet not knowing what my grade is going to be until the very end when I take my exams.

Need to get through this E&E and two others and I'll be fully ready, I think.  I also need to get the LEEWS CDs and "Getting to Maybe".  Lots of work to do.

Hard to do since my son is in his travel baseball season, now.  I know next year, I won't be able to take as active a role on his team.  (I keep the stats book, now, and help out with practices quite a bit.)

Business has improved a tad, and that's reduced my stress level quite a bit.  It was hard to focus on much when the biz was in the process of dying.

Every month the business can stay afloat is a pretty big victory.  The grand scheme is to keep it going until I finish school.  If I get a good job offer, I'll sell off the business and go work in the law.  If I don't get a good job offer, I'll keep the business while I establish my practice.

That all becomes moot if the thing craters between now and then.  It really is an integral part of my law school plan.

I also need to find a way to juggle my military reserve service in all this.  I do it not so much for the money, in fact, I spend as much money on travel to/from my drill location as I make.  However, it does give me great health care benefits at a very modest cost.  I'd hate to lose that. 

Also, I can see how taking some time away from law school to do a military deployment might actually be a really good thing for a lot of reasons.

The whole thing is getting closer to reality, now.  I've been saying for years and years that I needed to go back to school and learn something new. 

At my age, this is my last hurrah.  I'm just trying to make it count. 

Tuesday, April 5, 2011

Torts Notes - Indirect Infliction of Emotional Distress

Those who witnessed or soon learned of the injury may seek damages for emotional distress resulting fom the traumatic experience of either witnessing the injury or learning of it.  Such claims are referred to as claims for "indirect infliction of emotional distress because they are asserted by bystanders who suffer emotional injury indirectly due to the direct physical injury to another. 

The distress in such cases is often both foreseeable and severed.  Thus, the plaintiff will frquently be able to establish that the defendant's negligence was an actual and proximate cause of his emotional damages.

Many courts have held that defendants owe no duty to avoid inflicting emotional distress on bystanders, or only owe such a duty in very limited circumstances.

The very foreseeability of such distress argues for restraint.  Every victim who suffers negligent physical injury, a number of bystanders may suffer emotional distress.

It woud be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured as well as his friedns.

Courts are reluctant to impose a duty to persons who have no relationship to the defendant.

Judtes are justifiably concerned about the impact that creating a duty will have on the administration of justice.  Recognition of indirect infliction claims could clog the courts with suits over trivial unpleasantries better dealt with by "a certain toughening of the mental hide". 

In addition, courts have feared the specter of fraudulent claims.

Many courts have created a duty to avoid inflicting emotional distress, at least in limited circumstances.

The efforts of courts to limit indirect infliction claims has led to tourtured line-drawing, evasive distinctions and some of the least intellectually defensible doctrin in the annals of tort law.

Recovery for emotional distress was proper if the plaintiff also suffered physical injury, became known as the "impact rule" Emotional distress damages were often described as "parasitic".

Some allow a bystander to recover for emotional distress if he was in the "zone of danger".

The Dillon Rule:  defendants have a duty to avoid infliction of emotional distress that is reasonably foreseeable, including infliction of such distress on indirect victims.

Dillon rule factors:

1.  Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
2.  Whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident as contrasted with learning of the accident from others after its occurrance.
3.  whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

The Dillion court did not hold that all three criteria must be satisfied to allow recovery.  Rather, it suggested that they were relevant factors in the foreseeability analysis.  However, the california supreme court subsequently held that each of the Dillion factors must be satisfied to support recovery for indirect infliction.

Some California courts have allowed recovery in indirect infliction cases that don't meet the Dillion standards if the defendant owed a "direct" duty to the bystander.

Some courts have required that the direct victim suffer serious injuries if bystanders are to claim for indirect infliction.

In the same way that skeptical courts have turned the impact requirement into a token, they have eviscerated the "resulting physical injury" requirement by finding vague complaints sufficient.

These are still claims for negligence and that means that all four other elements of a negligence claim must be proved to recover.


Some courts that apply the zone-of-danger or Dillon approaches to indirect infliction claims also require that the plaintiff suffer some physical symptoms as a result of the emotional distress caused by the defendant's conduct.

Some require the plaintiff to prove "serious" or "severe" distress in order to recover. 

Others require expert testimony to establish the existence of the distress.

Some cases have refused recovery, even if the distress is genuine, unless the direct victim of the accident suffers serious injury.

Several courts allow indirect plaintiffs to recover if they prove that they suffered objective symptoms of a physical injury or psychic disability as a result of the distress suffered from witnessing injury to the direct victim, without meeting the Dillion or zone-of-danger standards.

The trauma of witnessing a horrific event or injury, which gives rise to a claim for indirect infliction of emotional distress.

The impact of personally observing the injury producing event distinguishes the plaintiff's resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.

Most courts do not allow emotional distress claims for such general grief and suffering of third parties.

Indirect infliction claims are based on the sudden shock of witnessing injury, factors like those cited in Dillon, which emphasize proximity to the traumatic events themselves, make sense as limiting factors.  Proximity to the accidentm, actually witnessing it, and being closely related to the victim all tend to increase the traumatic impact of witnessing serious injury.  By contrast, liability has usually been denied where relatives learn of an injury at a distance, or even observe an injured family member after the fact.  Similarly, where relatives of a direct victim suffer emotional distress, but the victim has not suffered a traumatic accident, recovery is usually denied.

A misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite to recovery.

Loss of Consortium:  When one person suffers physical injury due to a defendant's negligence, relatives of the victim will also suffer a third type of emotional damage.  "Loss of consortium."  This term refers to the impairment of a relative's opportunity to relate to the party directly injured by the defendant. 

The injury may interfere drastically with an injured party's ability to relate to his/her spouse.  The injury may intefere with recreational activites the couple shared, the division of labor within the household, the sexual society they shared, and the comfort, affection, advice and moral support that ideally flow from marriage.  These associated losses, the constellation of companionship, dependence, reliance, affection, sharing and aid which derife from the marital relationship are generally referred to as "loss of consortium" or "loss of society". 

Like indirect infliction, loss of consortium compensates an emotional loss to one party due to a direct injury to another. 

Loss of consortium does not stem from a sudden traumatic experience, but from the impairment over a period of time - perhaps years or decades - fo the opportunity to relate to the injured spouse.

Loss of consortium differs subtly from grief and sadness.  Loss of consortium compensates for the inability to relate to the direct victim, not for general feelings of sadness or empathy for them.

In theory, a jury should consider only the interference with a relationship in determining consortium damages.

I most states today, both spouses have a right to full recovery for loss of consortium due to injury to the other.

Since the broadening of spousal consortium rights, some states have allowed claims by parents for loss of "filial consortium" when their child is injured.  Many courts, however, have rejected such claims.  There is a similar split of authority on claims for loss of consortium brought by children whose parents have been injured by a tortfeasor.

The majority of states restrict consortium recovery to spouses only.

It is very doubtful that recovery would be allowed to non-family members.

Torts Notes - Duty

It is hornbook law that the plaintiff in a negligence case must prove four elements in order to recover:  duty, breach, causation, and damages.  Even if the defendant was negligent, and that negligence caused the injury to the plaintiff, the defendant will not be liable unless he owed the plaintiff a duty of care.

Courts have often refused to hold defendants liable, even though they have cause clearly foreseeble harm to the plaintiff.

Courts generally refuse to impose liability for doing nothing.

The fact that an actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.

The origin of the rule lay in the early common law distinction between actio and inaction, or "misfeasance" and "non-feasance".  In the early law, one who injured another by a positive affirmative act was held liable without any great regard even for his fault.  But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act.  Hence, liability for nonfeasance was slow to receive any recognition in the law.

The defendant whose act (misfeasance) endangers the plaintiff has "created a new risk of harm to the plaintiff, while by "nonfeasance" he has at least made the plaintiff's situation no worse and has merely failed to benefit him by interfering with his affairs".  Other defenders of the principle emphasize the infringement on individual liberty posed by coercing services from unwilling bystanders and the difficulty of defining the duty if it is to be imposed.

Most european countries, and Vermont impose a limited duty to aid.  Most american courts have not rejected the 'no-duty-to-act" rule outright.

A defendant's choice to engage in risk-creating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by that conduct.

Duty based on risk creation:  In most cases, risk creation is the obvious basis of the duty to exercise due care.

Courts have not hesitated to create "affirmative duties" to act for the protection of another where some policy justifies departing from the no-duty rule.

Duty based on special relationship to the perpetrator:  One who takes charge of a third person whom he knows or should kow to be likely to cause bodiliy harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. 

Duty based on innocent creation of the risk:  if the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.

Gratuitous Services Exception

One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
a.  the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge or
b.  the actor's discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.

There is no general duty to act for the benefit of another
those who chose to act owe a duty to others to use due care in such conduct.

Two types of limitations that courts place on liability:

First, limiting liability ot the foreseeable consequences of the defendant's negligent act
Second, denying liability for consequences that are foreseeable, for the types of policy reasons discussed in this chapter.

There is a distinction between refusing to impose liability for unforeseeable consequences (the classic proximate cause situation) and refusing, for policy reasons, to impose liability for ones that are foreseeable (the classic duty limitation.)

Child abuse statutes are triggered by knowledge of actual abuse, not just knowledge of a risk.

A bystander owes no duty to aid another unless the bystander has placed the victim in peril or has a previous relationship with the victim that supports a finding of duty.

Choice to intervene does not require person assisting to continue his services until the recipient of them gets all of the beneift which the actor is capable of bestowing.  But he must still act with reasonable consideration for the other's safety.

There is no duty on a rescuer to continue giving assistance until the victim no longer needs any.

Good samaritan laws are to encourage bystanders who are not obligated to render assistance to do so anyway, by giving them a measure of protection from liability.  Such statutes are not intended to grant immunity to persons who already have a duty to render assistance.

Duty is a question of law.  It is up to courts to define enforceable legal duties, not juries.  The judge should instruct the jury as to the duty owed in each ase.

In third party cases, there is a duty ot exercise reasonable care to prevent injury from the dangerous person.

Torts Notes - Proximate Cause

A defendant may be negligent, but if their negligence is too unusual, too far removed from the type of harm to be anticipated from the defendant's negligence, then liability will not be imposed.

If the only issue is cause-in-fact, negligent defendants would always pay since their conduct is a necessary antecedent of the plaintiff's harm in each.

Proximate cause problem is called "legal cause" to emphasize that the issue is whether liability should be imposed, not whether the defendant's act was a cause-in-fact of the plaintiff's harm. 

An actual cause question asks "what happened?"  A legal cause question asks, "What shall be done about it?"

In Re Polemis held that the defedant is liable if his conduct is the direct cause of the plaintiff's injury as opposed to a remote cause.

Proximate cause considers whether the defendant, at the time he acted, could foresee the risk that injured the plaintiff.  Under this foreseeability / scope of the risk approach, the court considers what the risks were that made the defendant's conduct negligent in the first place.

An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious. 

It relates the scope of liability to the faulty aspect of the defendant's conduct.

The duty to avoid injuring others extends only to those risks the actor should anticipate from her negligent act.

If plaintiff is "unforeseeable plaintiff", where no reasonable risk was anticipated, plaintiff can be denied recovery.

If the plaintiff's injury is truly beyond the type of harm to be expected from the defendant's conduct, the plaintiff will virtually always go uncompensated.

The defendant still "takes the plaintiff as he finds her", so even if DAMAGES are unanticipated, if the injury is one that can reasonably be anticipated, then damages are based on actual injury.

The cases distinguish unforeseeable consequences of a negligent act from consequences that are foreseeable but take place in an unusual manner.

In many cases, the line between unforeseeable consequences and unforeseeable manner is a fine one.

An injury does not have to be likely or probable in order to be foreseeable in proximate cause analysis.

"Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct.

Economic Analysis:  These liability rules tell decision makers that, under cdrtain conditions, they will be forced to bear the costs of their activities to others.  The effect of such rules is to give rational decision makers an incentive to incorporate the costs to others inot their decisions about whether to engage in the activity and hence, to create a situation in which the activitieds chosen by the rationl decision maker are efficient from an aggregate point of view.

However, the rational actor can only consider the liability consequences of risks that he can foresee.  Imposing liability for unforeseeable risks will not affect his choices.

Palsgraf stands for the proposition that the tort law does not require an individual to consider, in selecting her activity, costs to persons to whom harm is not reasonably foreseeable.  Unforeseeable harm cannot be internalized because, by definition, the decision maker could not have foreseen it.  Imposing liability where there is no foreseeability will "confer no economic beneift; it will merely require a costly transfer payment."

In common economic terms, a rule that an actor must pay for unforeseeable harms will not affect the actor's choices about activities that impose risk.  If we make him pay for unforeseeable injuries caused by his conduct, it will not make the world any safer or more efficient.

Although courts will find a way to avoid imposing liability for unforeseeable injuries, it does not follow that the converse is always true, that is, that a defendant must pay whenever he causes foreseeable harm. 

Courts that deny recovery for such secondary economic losses cannot credibly do so based on lack of proximate cause.  Generally, courts reason that the burden of liability for such secondary economic losses is too great.

Superseding cause:  in a good many proximate cause cases, the defendant argues that, even if she was negligent, a later act supersedes her negligence and breaks the causal chain.

When the risk of criminal conduct is foreseeable, it will not cut off the liability of a defendant who negligently exposes the plaintiff to that risk.

It is frequently said that whether the defendant's negligence was a proximate cause of the plaintiff's injury is a question of fact for the jury.

Defense lawyers must win the proximate cause battle in front of the judge, by convincing her that as a matter of law, the defendant's act was not the proximate cuase of the plaintiff's injury.  In many such cases, the judge will grant summary judgement for the defendant concluding as a matter of law that the plaintiff's injury was unforeseeable.

Torts Notes - Establishing Factual Cause

Sindell Approach:  each manufacturer of a drug is liable as determined by the proportional share sold in the relevant market area.  Does not solve case-in-fact problem.  It asks who contributed to a general risk of injruy and distributes damages among those creators. 

The "Market share approach" holds defendants liable for part of the plaintiff's damages in proportion to their market share.

Hymowitz decision is that it would be a windfall to producers if many produced substantially identical products that all posed the same risk, but plaintiff could not identify, precisely, which one produced the one that caused plaintiff's injuries.

Many courts have refused to adopt Sindell.

Loss-of-a-chance causation:  cases where the chance of survival was adversely affected by tortious conduct.  For instance, reduced from 75% chance of survival to 50% chance.  Many courts rule that in this case, defendant would be responsible for 25% of wrongful death damages.

Causation:  if all contributed to cause an indivisible harm (for instance, many products giving small exposure to asbestos, and asbestiosis results.  No one can be proven to have done it, but likely that exposure to all sources did it), defendants are probably liable under a "but for" standard.  If the courts use a substantial factor standard, the jury would find them all liable.

Res Judicata (a matter already judged):  once a case is settled, it can't be re-opened due to future damages later down the road.

0L Year and The Start of My Last Hurrah!

At my age, I'm acutely aware that I don't have all the time in the world anymore.  That's difficult for me since I was a kid who believed that everything was interesting.  I always envied people who knew what they wanted to do in life.  I remember a fellow student named Toby in the 8th grade who said he was going to be an architect.  I thought that was amazing.  How could he know that? 

Me?  Then and now, I could think of thousands of things that I could easily have spent my life doing.  The list of things I would not want to do is probably shorter than the list of things I would want to do.

Being a computer programmer?  Yeah, sounds good. 

Musician?  Guitar teacher / player?  Study classical guitar, music theory and sight singing/ear training in college?  That seems like it'd be awesome. 

Army commando?  Whoohoo! 
Management in a big company?  Count me in. 
Entrepreneur?  Naturally.

Ironman triathlete?  Coolness!

Officer in the Navy?  Can't think of anything better. 

Those are just the things I've done that took up a substantial amount of time.  Then, there are my casual hobbies:  playing the piano, skiing, competitive marksmanship, scuba diving, etc.

Every moment of my life feels like a kid in a candy store looking at a nearly unlimited number of options, where the joy of being able to choose is always balanced out by the bittersweet realization that I can't pick everything.

Now, though, I'm in my mid-40s.  I've clearly lost a step.  I'm paunchy, balding and gray.  My skin is starting to show the fatigue of over 4 decades of exposure to wind and sun. 

Law school for me is probably it.  I felt, after I finished my MBA, that I'd go back to school "someday".  By the time I start in the fall, that'll represent a 14 year layoff. 

My law career, if I am lucky enough to have one, will start when I'm about 50.  At that point, I have 15, maybe 20 working years left.  Not a lot of room to zig and zag at that point. 

So, in all likelihood, this is one of the last, and probably the last major change I'll be making in my life as far as vocation goes. 

It's also my very last, and perhaps best chance to do something really extraordinary.  Getting a JD is an accomplishment and a half, but if I can do it with a high class rank, that really will be an accomplishment that I can be proud of, that very few others can say they did.

In a lot of ways, I'm a much better student now than I was when I was younger. 

So many things in life happen backwards.  The time to be an entrepreneur, if you ask me, is when you're very young.  You can apply yourself fully.  You have plenty of time to recover if you crash and burn.  Me?  I started my first serious business when I was 39.

The time to make a lot of money is when you're starting out in life.  You need to buy a house, start a family, get a car, get furniture, pay off student loans or pay for school.  Most people earn a lot of money late in life, but not so much early on.  I ate a lot of white rice when my career was starting out.

I was a terrible student, but for the most part, the older I got, the better I got at it.  By the time I was going for my master's degree, I had discovered the value of attending class, keeping current on assignments and turning things in on time.  The 3.5 I got at CWRU's Weatherhead School of Management came with considerably less angst than the 3.0 I got on all my undergraduate coursework.

I honestly don't think there's another time in my life where I would be better suited to do this.  Provided my business stays profitable (a big "if" these days), I'll be in a great position to be a full-time student.  I'm more focused and disciplined. 

For the longest time, I've felt like I needed to go back to school.  It just took me a long, long time to figure out for what, and why.  Now, I know.  It's time to go.

It just dawned on me this morning as I was exchanging forum posts with a law school student, that I described my activities as "0L".

In law school, a first year student is called a 1L.  The guys in their 3rd and final year are called 3Ls.  For some unexplained reason, the guys in their second year are called "lord high majesty"... go figure.  Okay, not really, they're called 2Ls.

That's not so surprising.  I mean, you have to call them something.  There aren't four years, so you can't really call them "Law Freshmen" or whatnot.  I guess somebody could have, sometime in the past, started calling them "Bob" or "Fern", but nobody did.

To me, the funny part is that you can say "0L" and people know exactly what you mean:  somebody who will be starting law school next year. 

Really, in a way, you're in law school before you even submit your application.  0Ls are just as likely to influence their careers, and perhaps moreso, than 3Ls.  It's like, "not a law student" is a category of law student.

One of the concepts I got introduced to early on is that law school is a five year process.  You have the three years of law school, itself.  You have the year afterwards where you study for the Bar Exam and have to wait months for the results. 

Then, there's 0L year.  For most law students, that means taking the LSAT, applying to law schools, sifting through acceptances, rejections and figuring out where you're going to go.

However, I read a very convincing blog post by a guy who did very well his 1L year and he recommended the stuff that I summarized in this post:

http://lawgoround.blogspot.com/2011/03/theres-method-to-0l-madness.html

To me, preparing, academically, for 0L is about as natural and obvious as showing up for classes during 1L.  The funny thing is, this seems to be totally unheard-of outside of law school.  Nobody in business school started mastering the material a year before.  Even med school students don't specifically start studying for med school. 

The 0L prep is not only wierd outside the law school community, but it is so common within it that when you talk about the things you're doing in your 0L year, the very concept requires no explanation.

Funny to think that all the details are now in place.  I think I started to entertain this idea about six months ago.  In the mean time, the LSAT was taken, I was accepted to the only school I really wanted to go to, and I got a scholarship.  I'm ready to go.  Mostly, I've accepted that, but parts of me are still waiting for some other sign that I'll actually be doing this.

Classes start in August.  4 more months.

Sunday, April 3, 2011

Torts Notes - Determining Cause In Fact

Elements of a negligence action:  duty, breach, causation, and damages.

Defendant will be held liable only for those injuries he actually caused.

There are two causation requirements:  causation in fact and proximate causation/legal causation.

Causation in fact requires that the defendant's act contributed to producing the plaintiff's injury.

Negligence that dien't cause the injury is "negligence in the air" or negligence irrelevant to the injury and is thus not actionable.

The "but for" test is applied to determine whether the defendant's act caused the plaintiff's harm.  "if the event would not have happened but for that conduct.  Conversely, that the defendant's conduct is not a cause of the event if the event would have occurred without it.

defendant's act mus be a "sine qua non" of the plaintiff's injury. 

Sine qua non:  without which it is not; an indipsensable requisite

It is not a defense for one negligent actor that there was another negligent actor that caused the accident, too.  There is no requirement that the defendant's act be the sole "but for" cause of the injury, only that it be a "but for" cause.

Sufficient but necessary dilemma:  when either of two or more defendant's acts would have caused the plaintiff's injury.  The defendant's act was sufficient but not necessary to cause the injury.

a significant factor test is used to deterimine which acts were significant factors in the injury. 

If multiple acts, each of which alone would have been a factual cause of the physical harm at the same time, each act is regarded as a factual cause of the harm.

Summers v. Tice stands for the proposition that where two or more defendants commit substantially similar negligent acts, one of which caused the plaintiff's injury, the burden of proof shifts to each defendant to show that he did not cause the harm.

If both could have caused the injury and one of them clearly did, but they can't prove which one, the court will find for the plaintiff against all defendants.  The burden is on the defendants to prove who caused or didn't cause the injury.


In a tort case, the plaintiff must prove that the defendant's tortious conduct created the injury, not just that the defendant's act caused it. 

Torts Notes - Res Ipsa Loquitur

Res Ipsa Loquitur (the thing speaks for itself) is another means of proving negligence.

The cases that reach the trial stage are likely to present substantial disputes of fact. 

Direct testimony of a witness is compelling evidence.  Circumstantial evidence allows a jury to infer that the defendant was negligent.  Res ipsa loquitur is a step further beyond the traditional use of circumstantial evidence.

Res Ipsa Loquitur bespeaks negligence without more specific showing of the chain of events.  Not a separate principle, but a specific form of circumstantial evidence.

Facts can sometimes be inferred by other facts.

There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary cause of things does not happen if those who have the management use proper care, it affords reasonable evidecne, in the absence of explanation by the defendants, that the accident arose from want of care.

To make a res ipsa loquitur case, the defendant must make a case for the jury by showing that he was injured by an accident taht would not ordinarily happen without negligence and second, that negligence is more likely than not attributable to the defendant, rather than to the plaintiff or a third party.

The plaintiff's burden in proof of a negligence case is not to eliminate all possible alternative causes of his injury.  His burden is to show that the more probable cause was negligence. 

Evidence must point to the defendant as the negligent party.

The harm must have been under the defendant's control.

The event must not have been due to any voluntary action or contribution on the part of the plaintiff

A judge has the power to refuse to submit a res ipsa loquitur to the jury if there is no credible evidence in support of one or more of the elements of the plaintiff's claim.

The doctrine permits the jury to infer negligence but it does not require them to.

When the accident is such that it would not ordinarily have happened unless someone was negligent, and if the thing which caused the accident is shown to have been under the exclusive control of the defendant at the time that the negligent act, if any, happened, then you are permitted to infer from the mere fact that the accident happened and the circumstances surrounding it that the defendant was negligent.

The most effective way for a defendant to defeat a res ipsa loquitur case is to prove the actual cause of the accident.  If he can attack each of the foundation facts, he can request a directed verdict from the judge.  the judge's role is not to make findings himself that the foundation facts are established, but rather to determine whether the jury reasonably could conclude that those facts are proved.

res ipsa loquitur applies to the type of injury that ordinarily would not have occurred if reasonable care had been used.

res ipsa loquitur is not used when the chain of events of the accident can be explained.

Torts Notes - Violation of Statute as Negligence

The plaintiff in a negligence case must prove four elements:  duty, breach, causation and damages

Liability simply on the grounds of violation of statute would look more like strict liability than liability based on fault.  legislatures have not provided that violation of statutatory standard of care automatically establishes negligence, and it si fair to infer that courts have some discretion to "borrow" that standard selectively.

Negligence per se with "excuse" standard is the most common formula.  It holds that unexcused violation of a relevant statute is negligence per se, but the party who violated the statute may offer evidence of an excuse or justification for violating it.  Examples of excuses are:

a.  incapacity
b.  lack of knowledge of the need to comply
c.  inability to comply
d.  emergency
e compliance poses greater risk than violation

Violation of statute as resumption of negligence holds that proof of a statuatory violation creates a presumption that the violator was negligent.  The violator is still free to rebut the presumption bys showing that the reasonable person would have acted as he did.

violation of statute as evidence of negligence means evidence of the violation is admissable at trial.  The jury may consider it along with all other evidence.

Violation of statute must be relevant to the standard of care involved in the tort.

A statute is only relevant in establishing negligence if it is meant to protect persons like the plaintiff from the type of harm which actually occurred.  This is a question of law for the judge, not an issue of fact to be decided by the jury.

Compliance with a statute does not necessarily constitute due care, in and of itself.

Torts Notes - The Reasonable Person

The most common basis for tort liability is negligent conduct.

A claim for negligence is a tort with 4 basic elements
1.  a duty of reasonable care
2.  breach of that duty
3.  causation
4.  resulting damages

A plaintiff must prove all four of these elements to recover on a claim for negligence.

Negligence is the omission to do something that a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.

It is possible in a general way to describe the factors that a reasonable person considers before acting.

A reasonable person considers the foreseeable risks of injury that the conduct will impose on the community.

The reasonable person considers the extent of the risks posed by her conduct.

the reasonable person considers the likelihood of a risk actually causing harm.

considers whether alternatives to the proposed conduct would achieve the same purpose with lesser or greater risk.

considers the costs of various courses of action in determining what is reasonable

The hand formula is a function of three variables: 
1.  the probability that an incident will occur
2.  the gravity of the resulting injury if it does
3.  the burden of adequate preparations

The hand test is whether the burden is less than gravity times probability

The reasonable person takes a precaution against injury if the burden of doing so is less than the loss if the injury occurs multiplied by the probability that the injury will occur.

In cases where the precautions to eliminate a risk are too expensive, the only reasonable choice may be to forego the conduct entirely.

Juries are not instructed in strict hand formula terms.

One's duty is to act as a reasonable person under the circumstances.  Some individual characteristics of the actor are considered part of "the circumstances" in determining reasonableness.

No allowance is made for the circumstance that a person lacks good judgement, is hasty, awkward or perennially oafish.

The traditional rule, still generally accepted, is that the mentally ill are held to the same standard as everyone else, despite the circumstances of their illness.

Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.

Since the law will not hold you to a lesser standard, you will have to curtail  your activity or exercise particular self-restraing (or be restrained by others) to avoid liability.

Children are not are not held to the adult standard of care, but rather the standard of a reasonable person of like age, intelligence and experience under like circumstances.

Children have to learn to be careful and ought not be exposed to tort liability for conduct that is reasonable in light of their stage of development during the learning process.

The external circumstances under which an actor acted are always relevant.

The fact that conduct is generally engaged in by those in a particular trade or profession at least suggests that such conduct is acceptable.

However, evidence of custom is not dispositive.

Another circumstance is whether a statute requires a particular course of action under the circumstances. 

Evidence that the defendant ignored a statuatory standard will frequently suffice to establish that he was negligent.

People with specialized knowledge are not held to a higher standard of care.  Their standard like that of others, is reasonable care under the circumstances.  But the fact that an actor is a professional or assumes the role of an expert in an activity is a circumstance that colors the meaning of reasonableness.  A professional will be expected to possess and emply the skill and knowledge of her profession, not of the "ordinarily reasonable person".

The test is not whether an injury occurred, or even whether injury was foreseeable, but whether the defendant's conduct was reasonable in view of all the circumstances, including the possibility of injury, the utility of the conduct, the alternatives available and others.

Actors are not required to eliminate all risk of injury from their activities.  Only to conduct them with reasonable care.

Under strict liability, an actor who causes harm pays the resulting damages even if he acted with due care.

Evidence of custom, what is usually done in a trade or profession, is admissable at trial.  the jury is allowed to hear such evidence.  However, they still must determine whether what was done, customary or not, comports with the negligence standard itself, ordinary care under the circumstances.

liability for negligence turns not just on being negligent, but upon negligent conduct causing injury.

Torts Notes - Classic Defenses to Intentional Torts

Defendant can negate one or more of the prima facie elements of the tort.

Affirmative defenses do not argue against the prima facie elements of the tort.  Affirmative defenses show additional facts that allow the defendant to avoid liability.

Outside the statue of limitations
Self-defense
Consent


Privileges may be asserted such as the privilege of necessity, that an otherwise tortious act was privileged because it was done to prevent a greater harm.

The privilege to use force to protect oneself from an aggressor.  An actor is privileged to use force in self-defense and incurs no liability in doing so, in some cases even if sheinflicted serious bodily injury or death upon her assailant.

Self defense only authorizes the use of force to prevent an impending battery or to stop one which is in progress.

Self-defense cannot be invoked for defense against threats of future harm.

Victim is only licensed to use the force that she reasonably believes is necessary to avert the threatened harm.

Self defense is not intended to remedy the wrong already inflicted.  It is only authorized to prevent a further intrusion that cannot be avoided by waiting for legal redress.

The privilege to use force in self-defense turns on the victim's reasonably held belief that force is necessary, even if, in fact, it is not.

The victim must minimize the use of force as self-protection.

Courts have refused to create a duty to retreat before using nondeadly force in self-defense.

Deadly force in self-defense is force that is "intended or likely to cause death or serious bodily harm."

An actor may only use deadly force in response to the threat of deadly force, and only when non-lethal deadly force would be insufficient to prevent the attack.

Majority of jurisdictions allow victim of an assault with deadly force the privilege of standing her ground and using deadly force in self-defense, even if retreat is feasible.

Intevenor may act on her reasonable belief that a battery is about to be committed.

Mistaken defense of other is sometimes privileged, sometimes not. 

In some, an actor has the privilege to act upon his reasonable perception.  ("reasonable mistake" approach.)

Shoe-stepping approach (a minority position) means that the actor is only privileged if the actor is protecting a person who was actually privileged to defend himself.  If he is wrong about who the aggressor is, and defends the actual aggressor, he steps into the shoes of the aggressor. 

Volenti non fit injuria "volunteers cannot be made injured". 

Lack of consent is part of an element of a plaintiff's prima facie case and the allegation of lack of consent should be included in the complaint.

Most courts hold that the defendant is privileged to make a contact where the plaintiff's words, gestures or conduct reasonably manifest consent to it, even if she was not actually willing to be touched.

Victim must have appreciated the true nature of the intended contact and thus did not meaningfully consent to it.

Where the legislature has barred conduct to protect a disadvantaged class, even the plaintiff's actual consent may not create a privilege.

consent to medical treatment.  Consent to one type of touching is not necessarily consent to any touching done in the course of medical treatment.  Doctor is required to get consent from the person receiving treatment, or person may appoint a proxy to make decisions if the patient is incapacitated. 

doctor may still make some decisions if a reasonable person consent to the decision to avoid serious bodily harm or death.

Consent must be based on both parties understanding all the relevant facts.  If the actor does not reveal relevant facts, they may be guilty of misrepresentation by omission, which would vitiate the "meeting of the minds" that true consent is based on.

conduct that injurs another does not make the actor liable to the other, even though the other has not consented to it if
a.  an emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent from the other or  one empowered to consent for him and,
b. the actor has no reason to believe that the other, fi he had the opportunity to consent, would decline

Even if invoking the privilege of necessity, the actor must pay for resulting harm.

Torts Notes - False Imprisonment

People have freedom of movement, the right to "go freely through the world" and the "right not to be confined against one's will."

False imprisonment:  he acts intending to confine the other or a third person within boundaries fixed by the actor and his act directly or indirectly results in such confinement of the other and the other is conscious of the confinement or is harmed by it.

False imprisonment is an intentional tort.  It requires intent.  Carelessness is not enough. 

The defendant must have acted with a purpose to cause the confinement, or with substantial certainty that his acts will cause it.  One may act deliberately, but not intentionally. 

The defendant's intentional act must cause confinement of the plaintiff.

The restraint may be by means of physical barriers, or by threats of force which intimidate the plaintiff into compliance with orders.  It is sufficient that he submits to an apprehension of force reasonably to be understood from the conduct of the defendant, although no force is uded or even expressly threatened.

An actor can confine the plaintiff by confiscating significant items of personal property, or by other threats that would cause a reasonable person to submit to confinement.  "Coercion through seizure of personal property".

The plaintiff generally need not show any physical injury or other damage in order to recover for false imprisonment.  The damages need not be proved unless the plaintiff was aware of the confinement.

Privileges can be asserted in a false imprisonment case.

1.  Consent.
2.  Privilege to detain
3.  Privilege to arrest

The tort of false imprisonment is sometimes referred to as applying to a confinement without lawful privilege

Some courts recognize a privilege to detain a person to investigate theft.  This privelege is often referred to as "shopkeeper's privilege".

"One who reasonably believes that another has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a chattel purchased or service rendered there, is privileged, without arresting the other, to detain him on the premises for the time necessary for a reasonable investigation of the facts."

In many circumstances, there is a privilege to arrest a person based upon a warrant or reasonable suspiciion that the person has committed a crime.  But where the privilege does not apply, an arrest constitutes actionable false imprisonment.

The plaintiff is not required to have taken a means of escape "if the circumstances are such as to make it offensive to a reasonable sense of decency or personal dignity."

No true consent to detention can be claimed if the consent is given under duress.

Intentional tortfeasors are generally liable for the consequences of their deliberately tortious behavior, even unexpected consequences.  "take the plaintiff as you find him."

People can use self-defense to prevent false-imprisonment.

Actors must act based on reasonable appearances.

It is possible to approve infliction of minor bodily harm, or false imprisonment in order to avoid a greater harm.

Torts Notes - Trespass to Chattels and Conversion

Chattels under property law, are pieces of tangible, moveable personal property, as opposed to "real property" such as land.

If an actor intentionally damaged an owner's personal property, or temporarily deprived the owner of possession, she was liable for trespass to chattels.  If she intentionally deprived the possessor of an item of personal property, as by stealing it, she was liable for conversion.

Trespass to chattels provides a remedy for damage to personal property or temporary interference with its use even though the possessor is not permanantly deprived of it.

A trespass to chattel may be committed by intentionally
    a.  dispossessing another of the chattel or
    b.  using or intermeddling with a chattel in the possession of another

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel, if, but only if
   a.  He dispossesses the other of the chattel or
   b.  the chattel is impaired as to its condition quality or value or
   c.  the posessor is deprived of the use of the chattel for a substantial time or
   d.  bodily harm is caused to the possessor or harm is caused to some person or thing in which the posessor has a legally protected interest.

Liability for trespass to chattel is limited to those which cause resulting harm. 

As with battery, assault and other intentional torts, the actor must act for the purpose of causing the trespass, or with substantial certainty that the trespass will result.

One who damages or takes a chattel is liable to an immediate possessor or to a "person entitled to future possession."  Possessor may not necessarily be an "owner".

Conversion provides a remedy for a deprivation sufficiently serious that the tortfeasor is liable for the full value of the property.  It requires very substantial exercise of control or dominion inconsistent with the plaintiff's rights. 

If the property is merely damaged, or possession is temporarily interfered with, the claim is usually for trespass to chattels, not for conversion. 

If the property is stolen, or ven used for a substantial period of time, the actor will likely be liable for conversion.

The significance of conversion lies in the measure of damages, the recovery of the full value of hte goods, and that the tort is properly limited to those wrongs which justify imposing it.

Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

Doctrine of mistakes applies to trespass to chattels.  If something is taken, in belief that the person taking it owns it, that is still trespass to chattels.  The intent requirement is satisifed for an intentional tort because the person intended to take the item.  This holds true even if the person was mistaken as to the character of his act and the law places the consequences of his mistake on him.

In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important (these are tests to determine if conversion, rather than trespass to chattels has taken place)

   a.  the extent and duration of the actor's exercise of dominion or control
   b.  the actors intent to assert a right in fact inconsistent with the other's right of control
   c.  the actor's good faith
   d.  the extent and duration of the resulting interference with the other's right of control
   e.  the harm done to the chattel
   f.  the inconvenience and expense caused to the other

If conversion is found, the defendant is liable for the full value of the chattel at the time of the conversion

If trespass to chattels then the damages are the diminished value of the chattel or damages for the deprivation of use

Although trespass to chattels is defined by certain conduct, liability for damages are appropriate only if the trespass leads to damage or deprivation of use.

Conversion by receiving possession in consummation of transaction:  one who receives possession of a chattel from another with the intent to acquire for himself or for a third person a proprietary interest in the chattel which the ohter has not the power to transfer is subject to liability for conversion to a third person then entitled to the immediate possession of the chattel.

A converter in such cases may reduce the resulting damages by returning the chattel unimpaired.

tort law creates a limited privilege for a possessor of chattels to use force to recapture them.

commission of the tort might support an action for an injunction, even if the trespasser has not caused damages.

Some acts that we may think of as vandalism are actually conversion.  For instance, if it interferes with the plaintiff's property, caused extensive interference to it (or destroyed it), and if the actor does not act in good faith. 

Torts Notes - Trespass to Land

Trespass to land provides a legal remedy for intrustions upon one's real property, that is, on land owned or occupied by the plaintiff.

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
a.  enters the land in possession of the other, or causes a thing or a third party to do so, or
b.  remains on the land or,
c.  fails to remove from the land a thing which he is under a duty to remove

Trespass is an intentional tort.  In order to be a trespasser, the actor must act with a purpose to cause the intrusion on land, or with substantial certainty that she will cause it.

Various corollaries of intent analysis will also apply, such as the doctrine of transferred intent. 

A mistake by the actor is treated the same way in analyzing intent for trespass as it is for battery or assault. 

Damage to land is not an element of trespass to land.

actions for trespass to land confirm the title of the property owner and prevent trespassers from acquiring easements or adverse posession rights.

The effect of consent:  one who effectively consents to conduct of another intented to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.

The action for private nuisance provides a remedy for interference with the use or enjoyment of land that is less tangible, such as operating machinery on adjacent land that causes continuous vibrations, excessive noise, or foul odors.

Nuisance:  a condition or activity that interferes with the possessor's use and enjoyment of her land by incorporeal or non-trespassory invasions to such an extent that the landowner cnanot reasonably be expected to bear without compensation.

trespass can occur when a person gives permission to put up a structor or chattel or other thing that the actor or his predecessor placed in a reasonable manner with consent of the property owner if it is not removed after the property owner's consent has been effectively terminated.

The law recognizes the privilege to enter the property of another if necessary to avoid serious harm to the person.  This privilege is an "incomplete privilege" because although a person may enter the land, they are liable for any harm they create to it.

Trespass occurs if a person directs somebody else to trespass.  They are acting on intent which satisfies the "substantial certainty" requirement.

Nuisance and trespass are frequently blurred if the nuisance creates a detectable physical entry onto another's property.  However, when detectable physical entry is slight (by causing invisible particles to accumulate on property, for example), courts are likely to find that it is necessary to prove substantial damages to the property.  Contrast to traditional trespass law which holds trespass actionable at least for nominal damages without proof of any resulting damage.

A nuisance musbt be based on continuous behavior that interferes with the land owner's enjoyment of the property.

A trespass may be committed on, above or below the surface of the property.

If a landowner is aware of a trespass and does not remedy it, the trespasser may acquire easement rights over time.  Easements may be sold to preserve landowner rights and compensate landowners for the easement.

A renter can bring forth an action for trespass:  A person is in possession of the land and thereby able to maintain an action for trespass if he is in occupancy of land with intent to control it.  The actual landowner in this case has "reversionary right" to the land, meaning the land will revert to their control at the end of the rent/lease arrangement can not sue for trespass.  The party currently controlling the land must bring the action.  However, an out of posession property owner may recover for an injury to the land by a trespasser which damanges the ownership interest.

Saturday, April 2, 2011

Torts Notes - Assault

-The action for assault allows for recovery for interference with peace of mind.
-the action for assault protects the rights of people to be free from fear or apprehension of unwanted contact or physical aggression.
-Assault is defined as an act intended to put another person in reasonable apprehension of an immediate battery and which succeeds in causing an apprehension of battery.
-There must be an intentional, unlawful offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an immediate battery, coupled with the apparent present ability to effectuate the attempt.
-Must act
    1.  With the intent
    2.  To place the victim in apprehension of a harmful or offensive contact or to make such a contact.
    3.  the victim must reasonably be placed in apprehension of such a contact.
-one who attempts to batter the plaintiff but misses is liable if the plaintiff is placed in apprehension of a blow.  (Transferred intent.)
-fear of future contact will not support liability for assault
-"apparent present ability" is sufficinet if it creates apprehension in the victim.
-mere words alone cannot constitute an assault, unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with the person.
-the imposition of a condition that the assailant has no right to impose will not defeat an assault even though the plaintiff can avoid the assault by complying with the condition.
-assault in the tort sense is also a criminal act in the majority of states
-doctrine of mistake can also apply.
-if the tort is committed, you take the plaintiff as you find him.  Meaning you are liable for actual damages, even if they are inexcess of what you had intended the plaintiff to suffer.
-A well crafted complaint should allege a prima facie case.  That is that the basic facts establish the defendant's conduct fits the elemtns of the tort for which the pliantiff seeks damages.

Torts Notes - Battery

Battery is an intentional tort.  Meaning, the tortfeasor acted with an intention to commit the tort.  It is when a person intentionally inflicts a harmful or offensive contact with the victim.  Basically, a person commits a physical act that either physically hurts another person, or the act is offensive.

This must be intentional, meaning the tortious conduct must be intentional.  For instance, if I swing my fist in an attempt to strike a person's nose and hit it, that is intentional.  If I am pointing and making a gesture to try and show a person how to get to the subway and accidentally strike somebody in the nose as a result, that is not intent for the purpose of the intentional tort of battery.

My actions must be intended to inflict the harmful or offensive contact, or I must realize that such contact is substantially certain that the contact will result.  Either one condition or the other must apply.

Merely being careless is not intentional.  It may be negligence, which is a different tort, but the intentional tort of battery does not apply when the defendant was careless. 

Even if I have noble intentions, if I fulfill all the other requirements of the tort of battery, good intentions is not a defense.  For instance, a person may, for religious reasons, refuse blood transfusions.  Even if I am trying to save a person's life, if I have been made aware of this refusal, I would be guilty of battery if I give you a transfusion.
If I attempt to batter one person, but instead, I batter a different person than the person I intended to batter, this is considered "transferred intent" and it is still a battery.  For instance, if I try to throw a brick at Mike, but it hits Alex instead, that is still assault, but with "transferred intent".  The fact that I did not try to hit Alex does not remove the "intent" portion of the tort.

However, if I throw a brick at a person who I THINK is Mike, but it turns out to be Alex, that is not transferred intent.  That is part of the doctrine of mistake.  I made a mistake as to who I was throwing the brick at, but it hit the person I was aiming at.  Just like transferred intent, doctrine of mistake is not a defense.  I am still guilty of battery.

Also, if I attempt to commit a battery, but miss, transferred intent could be a component of the tort of assault.  For instance, if I try to hit you, but I miss, if you were frightened by the attempt, then I am probably guilty of assault, even though I did not TRY to assault you.  I tried to batter you. 
The contact, to be harmful, must injure another person, impair their body functions or cause them illness.  Even if contact is not harmful, it may be battery if it is offensive.

So, pinching a member of the opposite sex on the butt is battery if a reasonable person would find it offensive.  Offensive is defined as contact which would offend a reasonable person's sense of dignity.

Regardless of my intentions, even if I meant no harm, it is battery if a reasonable person would find the contact to be offensive.





Battery:
-Battery is defined as the "intentional infliction of a harmful or offensive contact with the person of the plaintiff.

-No contact is intentional if it is not the result of a voluntary act.

-The tortfeasor must act fot the purpose of inflicting a harmful or offensive contact on the plaintiff or realize that such contact is substantially certain to result.

-Intent denotes that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.

-The intent requirement convines intentional tort liability to cases in which the defendant acts with a higher purpose than mere carelessness.

-The intent requirement is disjunctive.  It is met either by a purpose to cause the tortious contact or substantial certainty that such a contact will result.

-A battery can be committed  with the best of motives.

-transferred intent:  where the actor tries to batter one person and actually causes a harmful or offensive contact with another.  Actor is liable to the actual victim.

-transferred intent also allows recovery when the actor attempts one intentional tort but causes another.

-Bodily harm is any physical impairment of the condition of another's body or physical pain or illness.

-Even if the contact is not harmful, it is tortious if it is offensive.

-offensive is if the contact would offend a reasonable sense of personal dignity.

-If a reasonable person would find the contact offensive, it is not a defense that no offense was intended or the actor didn't realize contact would be offensive to the victim.

-The actor must intend the consequenses of the act.  "consequences" refers to the harmful or offensive contact, not the injuries that result from it.

Contact with an object intimately associated with a person's body will satisfy the "contact" requirement for battery

For Battery, victim need not suffer any resulting harm to have a claim; the intrusion itself is actionable

Going to War With IRAC. Finished the Torts E&E Book (almost)

I am done with the Torts E&E except for the last chapter which is two sample exam problems.  Personally, I want to work as many exam problems as possible, but would probably like to wait until I'm a little closer to the exam to do so. 

Overall, the book wasn't that bad.  It did feel like a lot of information.  So, on the one hand, yeah, I crammed a semester's worth of material into two weeks of study.  On the other hand, during a semester, I'd be taking Torts and 4 other classes.  So, this pace isn't really that extraordinary.

Most everything was pretty straightforward.  There was very little math and it was all rudimentary arithmetic.  Most of the concepts weren't hard.  You just had to know them. 

This is something I feel I can do.  If nothing else, doing the E&E has given me a little confidence.  I would recommend this to anybody contemplating law school.  At a minimum, work through one of these books to get a flavor for the material.

At the end, there are three sections that deal with preparing for your Torts exam:  exam strategies, exam mistakes and sample essay questions.

The exam strategies talked about a method called "IRAC", which I have heard about on various forums.  The basic idea is that you identify the Issues, discuss the applicable Rule, provide some Analysis of how the facts relate to the rule and identify the likely Conclusion that your analysis provides.

To me, the R, A and C are all pretty easy.  The tough part so far has been pulling out all the relevant Issues.  It's easy to miss a detail, thinking that something is inconsequential, when instead, it's something that deserves a detailed analysis. 

Still, this was very insightful because it gave me a flavor of what law school exam questions were like.  When I start classes, I'm going to try and get as many copies of old exams as I can get my hands on.  Since in most classes, there is only one graded assignment:  the final exam, it only stands to reason that the better you are at exams, the better you'll do in class.

Friday, April 1, 2011

Okay, this is what I'm ****ing talking about...

I used to describe academic difficulty in this context.  When I took my second semester of general chemistry, I would sometimes read a page over and over again and literally not understand what they were trying to say.  That never happened in most classes.  Mostly, just in chemistry.

I figured that if I had continued in the hard sciences, I'd have a lot more situations like that, where a concept is so odd that I just had trouble understanding it. 

I've even heard very prominent scientists (Ph.D.s doing cutting edge work) who said that they had no actual conceptual understanding of some scientific principles.  Instead, they simply got to where they memorized the explanation by rote, and that allowed them to do what they had to do.  However, they did not understand it in their bones.

I just ran across my first moment of that in the torts book.  There have been some concepts that are tough to understand, but this one was the first where I had to read the pages about 10 times to finally understand what the heck they were talking about.

In states with comparative negligence (where they might say that although somebody acted negligently, and you got injured, but you also acted negligently, so your award will be reduced), they may also add a phrase like, "the defense of assumption of the risk is abolished".

Which, to a literate person, would mean that you, as the defendant, could not argue that you were not-negligent, and that the person who was injured was doing so while fully knowing and assuming the risks inherent in an activity is allowed to put forth a suit despite a primary assumption of risk.

(For instance, a ski slope is not negligent if you ski down the hill, fall down and get hurt.  It's impossible to offer skiing as an activity without the risk of falling.  The slope operators are not being negligent.  You basically assumed the risk of the activity when you did it.)

However, that's not what this means at all.  This is the sort of stuff I alluded to a few posts back where sometimes you think you understand the law and an attorney just sort of winces and says, "Well, literally, that's what it says, but they're not talking about that.  They're talking about this other thing."

What this means is that secondary assumption of risk (which means that the defendant acted negligently, but you chose to continue, anyway), is treated as though it is negligence by the plaintiff (which reduces his settlement in a comparative negligence jurisdiction.)

This stuff can easily get confusing.  It's a wonder law students pass their classes, given that they have to master a pretty detailed level of arcana in 5 classes every semester.  I mean, yeah, it's not hard to make a not of this one wierdness, and so far it's by far the wierdest in the book.  However, remembering dozens of wierd situations in a handful of classes starts to be a trick.

Anyway, I understand it now, but it took a while.  Long time since that happened.  In fact, it hasn't happened to me since 1988.

Studying the Law is Like a Three Stooges Episode

I was forewarned about this by the guys at the "Barely Legal Blog".  They were referring to workman's comp claims and how they were unintentionally hilarious.  Reading the legal description probably makes them funnier because of the incongruity of the legal language against the backdrop of slapstick human behavior.

Reading about torts sometimes involves reading about people who are injured while doing things.  These are the sorts of things the popular media likes to publicize.  "A guy pees on a railroad track while drunk, electrocutes himself, and sues the railroad company."

I know this probably doesn't speak well for me as a human being, but I literally laugh out loud when I read some of these things.  For instance, I'm reading a section on Implied Assumption of Risk.  (Basically, that an activity is so obviously dangerous that if you get hurt doing it, you can't sue for negligence on the part of the person who provided the activity.)

What had me rolling today were things like:

"The plaintiff goes skating at the defendant's skating rink, is hit by a poor skater who loses control, and is injured when she hits the wall of the rink"

and

"The plaintiff takes rock climbing instruction and is injured when a seemingly solid rock is dislodged by a climber and falls on her."*

Just getting the picture in my head is enough, but if you have, say, the characters of the Simpsons doing the activities, it gets even better. 

Picture Homer being hit in the head by a rock, saying "Doh!", and the kids doing that laughing thing that they do when they prank call Moe's. 

I think like most things in life, this stuff can be funny if you look at it the right way.  Maybe that should be my goal in all this:  to try and find a way to view this stuff with levity. 

* these excerpts are from "The Law of Torts, Fourth Edition, Examples & Explanations".