I'm almost there, maaaan. first establish duty ... then breach, by analyzing reasonable care, circumstances, etc., in light of duty to defendant, then causation a) cause in action, sometimes b) proximate cause, and then damages.
― burt_stanton, Tuesday, 9 December 2008 02:59 (fifteen years ago) link
I smell like shit and I haven't used my vocal cords to speak to another human being in about 3 days
― burt_stanton, Tuesday, 9 December 2008 03:03 (fifteen years ago) link
all my class mates have taken this torts exam so easy. it's like, "really guys, you've mastered this so easily?" am I stupid here?
― burt_stanton, Tuesday, 9 December 2008 03:49 (fifteen years ago) link
I feel simultaneously completely ready and completely unready for Civ Pro. I did half a practice exam today on subject matter jurisdiction and personal jurisdiction. On one hand I felt very clear with my analysis. On the other hand I made errors including:
- Saying that the defendant could make a "special appearance" to challenge personal jurisdiction even though the case was in federal court and I should have cited rule 12- doing the whole diversity jurisdiction analysis (correctly) while entirely forgetting to mention the statute
There's so much more shit to get WRONG in Civ Pro. Torts is practically creative writing once you know how it works.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 04:11 (fifteen years ago) link
When's your Civ Pro exam? Yeah, torts isn't bad ... hey, I have a question: what kind-of third party liability do defendants usually have? Is it just up to the special relationship they have with those who commit the tortious act? and in absence of special relationship, no liability for injuries to third parties?
― burt_stanton, Tuesday, 9 December 2008 04:56 (fifteen years ago) link
Civ Pro is Wednesday. But it's open book. But it's really dangerous to rely too heavily on it being open book (because in a 60 page outline, it's easy to forget to look).
Hmm -- can you be more specific about what you mean by liability to "third parties"?
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:02 (fifteen years ago) link
Third parties ... you know, like Tarasoff or Nicollet Hotel and all that stuff.
― burt_stanton, Tuesday, 9 December 2008 05:03 (fifteen years ago) link
Say the hotel staff knows the guests are throwing chairs out the window and some dude gets hurt by it ... is the hotel staff liable for the injuries to that third party based on the actions of the guest, or is it simple nonfeasance? How is duty argued here? Is there a general rule or is it always up to arguing special relationships?
― burt_stanton, Tuesday, 9 December 2008 05:04 (fifteen years ago) link
Well, I guess there can never be a general of duty for nonfeasance, but I don't know. I guess I'll look it up.
― burt_stanton, Tuesday, 9 December 2008 05:05 (fifteen years ago) link
Did you guys suffer through this in your class?
Oh, I guess the court in that case used the duty test to impose a new duty
― burt_stanton, Tuesday, 9 December 2008 05:08 (fifteen years ago) link
and absent particular circumstances specific to the case to impose a duty, and no special relationship, no duty, and thus no case. Sorry, I'm still working this duty shit out ... it seems like it's the absolute most important part of torts.
― burt_stanton, Tuesday, 9 December 2008 05:10 (fifteen years ago) link
Well, if you're talking about special duties to CONTROL the actions of a person, the people that you're calling "third parties" are the only ones that are going to be claiming any liability in the first place. I think you're confusing a duty TO someone else with a duty to control someone else. The whole point of the duty to control cases is that a third party was injured.
Tarasoff is the only case you've named so far that we did. That one is kind of a mindfuck really. My professor totally hates the holding. But in that one the court does say there's a special relationship created because it's a therapist and a patient. The court says that the therapist was negligent in failing to warn the intended victim.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:10 (fifteen years ago) link
I didn't confuse that. I'm saying, how does one argue duty if presented with a new fact pattern absent a clearly defined special relationship? I read the holding of the case and it just used circumstances of the facts in the case ... foreseeability, knowledge, position to do something, etc. etc.
― burt_stanton, Tuesday, 9 December 2008 05:14 (fifteen years ago) link
If you're specifically talking about a failure to control/failure to act case, then yes, you usually need a special relationship between the defendant and the person whose conduct they were allegedly supposed to contorl. If not, you don't have to go creating new duties.
For the record, the court says that "plaintiffs' pleadings... establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist. Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons..."
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:21 (fifteen years ago) link
Tarasoff is creating a new duty, though ... before that case, that duty did not exist. Before Tarasoff that special relationship did not exist
― burt_stanton, Tuesday, 9 December 2008 05:26 (fifteen years ago) link
hence why it's so controversial among torts professors. I guess it's totally pointless to worry about it
Tarasoff is the case where the court uses a bunch of guidelines of the duty principle to craft the "doctor patient" duty ... and tons of jurisdictions refuse to acknowledge it.
― burt_stanton, Tuesday, 9 December 2008 05:27 (fifteen years ago) link
You are correct.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:28 (fifteen years ago) link
Although many jurisdictions do recognize it.
There are also other things to consider that seem overlooked in Tarasoff -- for example, even if he had a duty to warn and failed to do so, how the fuck do you prove causation? If he had warned her, what exactly would she have done?
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:29 (fifteen years ago) link
I take it your professor is into the "duty to control" cases. We didn't spend much time on that. Obviously it's good to be attuned to what your professor is into.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:30 (fifteen years ago) link
Oh man, my brain is fried, I'm done for the night. I just psyched myself out that I was totally dead wrong about this stuff. As far as causation goes, it's interesting ... is the doctor's failure to warn even a cause in fact to the murder? Even if it did survive cause in fact, what about proximate cause? Though I think that's the heart of the foreseeability argument the defense/dissent relies on.
― burt_stanton, Tuesday, 9 December 2008 05:32 (fifteen years ago) link
Yeah, that's kind of what I'm saying. Obviously the court found him liable. But there seems to be a huge cause-in-fact problem, not to mention proximate cause. Courts do shit wrong all the time.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:33 (fifteen years ago) link
as in, "the doctor's negligence did not proximately cause the murder because the predictions of murder are normally incorrect, and thus there's no real foreseeability to a patient comitting a murder who says they're going to do so." foreseeability being a component of the whole scope-of-the-risk test for legal cause. right???
― burt_stanton, Tuesday, 9 December 2008 05:34 (fifteen years ago) link
Our torts professor said this result is huuuuuuuuuuuugely controversial, and now I'm seeing why.
― burt_stanton, Tuesday, 9 December 2008 05:35 (fifteen years ago) link
Yeah, that's certainly one way you could argue it.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:36 (fifteen years ago) link
though if they got to causation, would they be assuming in their argument that "even if the doctor had the duty ..., causation isn't even met"
― burt_stanton, Tuesday, 9 December 2008 05:38 (fifteen years ago) link
You might even be able to argue it on standard-of-care/risk-balancing analysis, i.e. "Expecting a psychotherapist to warn about every patient threat places a very high burden on the profession (particularly since it damages doctor-patient trust), and the probability of harm is very low since most patient statements about intent to do harm are never acted upon."
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:39 (fifteen years ago) link
xpost, yeah I think it's always good to do the "even if" thing on an exam -- cover all bases.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:40 (fifteen years ago) link
Oh, like running it through a Hand Formula type thing? burden high, risk low though potential damages being huuuuuge.
― burt_stanton, Tuesday, 9 December 2008 05:41 (fifteen years ago) link
yes exactly
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:42 (fifteen years ago) link
what I'm annoyed about is, our last class was Friday ... and we had a shitload of new reading for Friday. and our exam is Wednesday! I've been studying since Saturday.
― burt_stanton, Tuesday, 9 December 2008 05:43 (fifteen years ago) link
as in, this Wednesday. 4 free days to study. for a year's worth of torts. closed book.
― burt_stanton, Tuesday, 9 December 2008 05:45 (fifteen years ago) link
yeah, my torts is closed book too. Honestly I'd rather take that one first. Feel much more ready for that.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:47 (fifteen years ago) link
Oh well, tomorrow I'm going to do the two practice exams we have for this guy and bone up on all this shit. I don't even hear my classmates debate duty, causation, etc., so hopefully a lot of them missed the fact that you have to establish these things before you can argue all the fun stuff.
― burt_stanton, Tuesday, 9 December 2008 05:50 (fifteen years ago) link
Unless they have hornbooks or commercial guides that give them the inside info on this shit... I see everyone with those.
― burt_stanton, Tuesday, 9 December 2008 05:53 (fifteen years ago) link
Does your prof do straight issue spotters?
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:53 (fifteen years ago) link
Yeah, the exam is 2 big issue spotting questions. I already worked through a chunk or two, but not as a whole
― burt_stanton, Tuesday, 9 December 2008 05:54 (fifteen years ago) link
It's funny how professors get hung up on certain things -- mine spent an inordinate amount of time on Ranson v. Kittner, Informed Consent and Reasonable Alternative Design.
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 05:56 (fifteen years ago) link
I have no idea what that is
― burt_stanton, Tuesday, 9 December 2008 05:57 (fifteen years ago) link
We spent most of our time on negligence in general (what is the standard of reasonable care? how do statutes affect this? how do circumstances play a role? parties? etc.), duty, and causation. Then we spent about a day on strict liability and a day on intentional harm. But I'd say 75% of the class was just duty and causation as principles.
― burt_stanton, Tuesday, 9 December 2008 05:59 (fifteen years ago) link
I hope my other classmates missed the fact that market share liability is a doctrine of causation that must be argued after establishing duty and breach ... :{
― burt_stanton, Tuesday, 9 December 2008 06:01 (fifteen years ago) link
Ranson v. Kittner = old case where a hunter accidentally shoots someone's dog thinking it's a wolfInformed Consent = medical cases where plaintiff wouldn't have consented to certain treatment had they known certain things (usually the risks invovled)Reasonable Alternative Design = products liability concept -- if you're claiming the design is defective, do you have to show that the company could have made it differently?
― Indiespace Administratester (Hurting 2), Tuesday, 9 December 2008 06:01 (fifteen years ago) link
Oh, we did an informed consent case... Matthiest. On the syllabus it's under Negligence: Medical Malpractice, Industry Profession and Standards. As in,
― burt_stanton, Tuesday, 9 December 2008 06:06 (fifteen years ago) link
I totally forgot about that one. Better revisit it :{}
― burt_stanton, Tuesday, 9 December 2008 06:07 (fifteen years ago) link
oh well, that shit's for tomorrow
Guys, please don't cram right up until the exam. Give yourself a good night of sleep before it, and a good breakfast. I know I sound like an overbearing mom or guidance counsellor, but really...at this point, you're at a good place to write a good answer. Take today, and then go to bed reasonably early tonight.
And bathe, Burt. No one likes sitting next to the stinky guy in exams.
― B.L.A.M., Tuesday, 9 December 2008 14:40 (fifteen years ago) link
It's hard to sleep all that well, especially when they start using jackhammers outside my window at 7:00 am. and I have a groundfloor apartment. NYC's starting to piss me off
― burt_stanton, Tuesday, 9 December 2008 15:10 (fifteen years ago) link
and I definitely still need to study ... if they have an Ybarra style res ipsa question on there, if I did nothing today I'd fail it. Time to study.
― burt_stanton, Tuesday, 9 December 2008 15:15 (fifteen years ago) link
huh, tarasoff came up in one of my classes, too!
― Tanganyika laughter epidemic (gbx), Tuesday, 9 December 2008 15:21 (fifteen years ago) link