Wiashing you well.Hope Contracts wasn't bad! Torts will be heck, but remember your training. I will be in tomorrow and Tuesday. Will ty to hold a review hour Tuesday.
Just a few random questions that occurred to me during review:
1)We learned in class that multi-generational claims usually do not succeed for obvious public policy reasons, but is it that proximate cause limits the liability of the defendant, say a pharmaceutical company, to only the foreseeable first-generation victim? Or does the passage of time also act as a superseding force that cuts off liability of the drug company?
2)In a tort claim that involves contributory negligence on the part of the plaintiff, will the defendant always be liable for total damages unless the court uses a comparative negligence approach to apportion liability?
3) We didn't focus extensively on indemnity, I'm wondering if we should be able to recite all of the possible situations to which an indemnity claim can apply for the exam?
1.) When we discuss proof of negligence (Circumstantial Evidence / Res Ipsa), is it appropriate to place this discussion between our breach analysis and our causation analysis? Or does it belong "within" the breach analysis?
2.) If we are not given details in the fact pattern regarding Comparative/Contributory Negligence, or Contribution and Indemnity, should we address all possible ways in which various courts of law would permit the joint tortfeasors to pay damages or seek contribution? Or should we only address this point if the facts lend themselves to it?
3.) I know you said that vicarious liability will not be on the final (except for when an employee's negligence imputes to her employer--and that we should exclude the independent contractor analysis). Could you explain when we should emphasize the plaintiff's claim against the employee over the plaintiff's claim against the negligent employee's employer? Or would analysis under either defendant be acceptable so long as we mention the alternative defendant wihtin the IRAC?
4) What is the best test for balancing the foreseeability of the result and the foreseeability of the intervening cause? 5) Does Wagon Mound not care HOW P was injured as much as that P was actually injured while Palsgraf take into account the circumstances more? 6) When and how does the “take the P as you find him” adage apply in negligence? Is it the foreseeability of the car accident or the death ensuing from the car accident or an infection ensuing from that car accident? Is proximate cause seeing the foreseeability of each or of the last result? If it is the last result, death, then D gets off if only the crash was foreseeable, or all events reasonably arising become foreseeable? Would the death be an intervening force? 7) Is comparative, modified comparative and contributory the three different jurisdictions that exist and joint and severable could be exercised in each? Could joint and severable work under contributory, how? Would we have to analyze all three with the permutations created by joint and severable?
9) Do we do CT test when analyzing a failure to act situation? 10) Do we need to know release vs. covenant not to sue? Indemnity? How deep? 11) What are the privity limitations for attorneys? 12) When is Res Ipsa used? Could CT be used instead all the time? 13) Do we need to mention last clear chance on the exam? Where? 14) What do we use when the apportionment of damages is unclear in a comparative negligence jurisdiction?
I wanted to ask about two hypos given during class, that I was not too sure of the outcome.
1) If your neighbor is growing foul smelling cabbage that would be nuisance and not trespass? because for trespass you need some actual damage (even if its minimal or no damage but some sort of entry), but it would be a nuisance because it interferes with the enjoyment of your property?
2) Blood transfusion to someone who is against them due to religion while the person is unconscious - I know we would speak to consent, but as far as I.I.E.D this does not apply right? Because the Dr.'s actions conduct do not seem extreme and outrageous (given the emergency situation) - but if it were while the patient was conscious then we'd have to examine further how the Dr. acted etc?
Just a few random questions that occurred to me during review:
ReplyDelete1)We learned in class that multi-generational claims usually do not succeed for obvious public policy reasons, but is it that proximate cause limits the liability of the defendant, say a pharmaceutical company, to only the foreseeable first-generation victim? Or does the passage of time also act as a superseding force that cuts off liability of the drug company?
2)In a tort claim that involves contributory negligence on the part of the plaintiff, will the defendant always be liable for total damages unless the court uses a comparative negligence approach to apportion liability?
3) We didn't focus extensively on indemnity, I'm wondering if we should be able to recite all of the possible situations to which an indemnity claim can apply for the exam?
1.) When we discuss proof of negligence (Circumstantial Evidence / Res Ipsa), is it appropriate to place this discussion between our breach analysis and our causation analysis? Or does it belong "within" the breach analysis?
ReplyDelete2.) If we are not given details in the fact pattern regarding Comparative/Contributory Negligence, or Contribution and Indemnity, should we address all possible ways in which various courts of law would permit the joint tortfeasors to pay damages or seek contribution? Or should we only address this point if the facts lend themselves to it?
3.) I know you said that vicarious liability will not be on the final (except for when an employee's negligence imputes to her employer--and that we should exclude the independent contractor analysis). Could you explain when we should emphasize the plaintiff's claim against the employee over the plaintiff's claim against the negligent employee's employer? Or would analysis under either defendant be acceptable so long as we mention the alternative defendant wihtin the IRAC?
What is wiashing?
ReplyDelete4) What is the best test for balancing the foreseeability of the result and the foreseeability of the intervening cause?
ReplyDelete5) Does Wagon Mound not care HOW P was injured as much as that P was actually injured while Palsgraf take into account the circumstances more?
6) When and how does the “take the P as you find him” adage apply in negligence? Is it the foreseeability of the car accident or the death ensuing from the car accident or an infection ensuing from that car accident? Is proximate cause seeing the foreseeability of each or of the last result? If it is the last result, death, then D gets off if only the crash was foreseeable, or all events reasonably arising become foreseeable? Would the death be an intervening force?
7) Is comparative, modified comparative and contributory the three different jurisdictions that exist and joint and severable could be exercised in each? Could joint and severable work under contributory, how? Would we have to analyze all three with the permutations created by joint and severable?
9) Do we do CT test when analyzing a failure to act situation?
ReplyDelete10) Do we need to know release vs. covenant not to sue? Indemnity? How deep?
11) What are the privity limitations for attorneys?
12) When is Res Ipsa used? Could CT be used instead all the time?
13) Do we need to mention last clear chance on the exam? Where?
14) What do we use when the apportionment of damages is unclear in a comparative negligence jurisdiction?
Where would be the best place to discuss contributory negligence? Would you prefer to have it as a separate issue or within the proximate cause?
ReplyDeleteI wanted to ask about two hypos given during class, that I was not too sure of the outcome.
ReplyDelete1) If your neighbor is growing foul smelling cabbage that would be nuisance and not trespass? because for trespass you need some actual damage (even if its minimal or no damage but some sort of entry), but it would be a nuisance because it interferes with the enjoyment of your property?
2) Blood transfusion to someone who is against them due to religion while the person is unconscious - I know we would speak to consent, but as far as I.I.E.D this does not apply right? Because the Dr.'s actions conduct do not seem extreme and outrageous (given the emergency situation) - but if it were while the patient was conscious then we'd have to examine further how the Dr. acted etc?
Wondering if this thought pattern is correct...
http://www.nytimes.com/2008/11/27/us/27myspace.html
ReplyDelete