Going To Law School

and in failing that duty, she's contributorily negligent in his accident that damaged her car?

The professor, thank god, said he is going to reuse one old question on the exam. So that's a relief. :[]

So if all that happened is she saw that he was drunk at a bar and didn't stop him from driving, it's unlikely that a court will find she breached any standard of care. And do we really want to impose liability on any friend who fails to stop a drunk friend from driving? What about an acquaintance? What about strangers at the bar with whom he had chatted? But you could make an argument for breach of standard of care if you wanted.

Now If she loans him HER car knowing he's drunk and then tries to sue him for damaging the car, he's certainly acted negligently and he's certainly a but-for and a proximate cause of the harm. But she has also acted negligently and is also a but-for and proximate cause of the harm. She has actively enabled and encouraged him to drive knowing the state he's in. And on comparative fault before a jury I don't think her case looks very good -- I'm guessing she recovers little or nothing for her car damage.

If she loans him her car knowing he's drunk and then he injures himself and he sues her, again both parties have acted negligently and are the but-for and proximate cause of the harm. At that point I'd argue that it depends on how drunk he was -- was he still somewhat capable of making a rational decision? Was he blitzed out of his mind? If he was blitzed out of his mind, I'd say a lot of the fault is going to be put on her since she actively loaned him the car. Either way I think she's going to get some of the fault in comparative analysis, and he probably will too (juries don't like drunk drivers). But my prof always warns us not to play jury on an exam.

No, she had lent him the car that day, but later saw him drunk.

ah ok, no we didn't have Falwell. Remember, it's common law -- judges pull things out of their asses all the time. So on an exam you could say, "Most courts do not recognize a special duty between friends. But in Falwell v. Keaton, blah blah blah." and then you can just make an argument one way or another.

Yeah, the dissent in Farwell covered a lot of what you said ... not coming to the friends aid was nonfeasance and imposing a duty on the friend would be akin to allowing "moral law" to rule, which is an impossibility, etc. The professor was pretty skeptical about the whole friends on a night out thing. But it shows that these relationships can be created through argument, I guess, since in this case it worked.

Hmm, ok, that's tougher. But if she's suing him for her car damage, it shouldn't even matter whether she had a duty to rescue him -- that's more relevant to his claims for injuries. The question is whether she was contributorily at fault for her OWN damages by failing to take the keys from him.

Yeah, that's the question we have to answer ... she's suing him for damaging the car, but she had an opportunity to prevent it when she saw him dead drunk, and it's foreseeable that he'd you know ... he could crash her car.

Yeah. I'd argue that she's partially at fault. Bottom line is just be prepared to argue it and know how to go through the steps.

But your special duty to another person should only be relevant when that person is the one suing you, not the other way around. So if the judge brought up her duty to HIM, he's confused.

But why is she partially at fault? Without establishing duty, there's nothing. What duty did she owe him? As a friend? As a loaner of the car?

If she had no duty at all in the situation, then it means nothing she didn't take the keys away ... and so could be free to collect sweet, sweet damages.

Every person always has a duty to act reasonably under the circumstances, and a violation of that duty is negligence. My professor just calls this general duty "standard of care" to make it less confusing. She doesn't have to owe him any duty because he's not the one damaged, she is. I know it's awkward to say she's comparatively at fault because it implies that she owes HERSELF a duty, which seems nonsensical. But when you argue that someone is comparatively at fault for their own damage, that's kind of what you're doing.

Here's that full paragraph.

"Around 8:00 pm Jill entered the bar. She was walking home from a company dinner and intended to get a drink. When she saw her friend, however, she changed her mind and quietly slipped out into the street. Walking home, and seeing her car still parked in the adjoining lot, Jill wondered whether she shouldn't return to the bar, confront her intoxicated friend, and demand her keys back. She did none of these things, however, but merely walked home and went to bed. At her deposition, Jill explained she didn't want to 'create a public scene' by demanding the return of her keys. She believed her friend would probably not comply with such a request unless she called the police. She also reasoned that Dionne was 'an adult, able to take care of himself', that he had a spotless driving record (which was true), and further, that she had promised him the car, and 'after all, a promise is a promise'"

Yeah, I was thinking she owed herself the duty to protect her car. General duty sounds much better to argue with

But yeah, tomorrow I'm going to sort out all the steps in torts. We read about 150 cases in this class, plus all sorts of weird abstract formulas and theories, so we never actually talked about ... how to approach torts cases. He said we had to figure that out on our own.

Sometimes stepping back to common sense helps. Do we really want to let this lady off completely for doing the dumb think of letting a drunk drive her car?

Yeah. I would think that she would argue nonfeasance to collect $$$ and the defendant would argue some kind-of duty of reasonable care under the circumstances to mitigate damages.

150 friggin cases. Damn. and I've reread almost all of them. :[

We had our last class this Friday, and so we're supposed to be boned up on 150 torts cases, closed book, for an exam on Wednesday. Law school is great. Of course my friends are already on Civ Pro, so I'm probably just an idiot.

But what are the steps again in approaching a tort question?

First, establishing duty ...

Well, I'll get it down on my own. Did your torts class make you read a similar number of cases?

hmm. 150 full cases? I don't think so. Maybe 120?

Eh, same shit then.

All I dreamt about during the night was duty ... causation ... breach ... damages ... and then how strict liability removed privity from duty and made it just about causation, which was a failed argument for duty in Strauss v. Belle Realty. Stupid brain.

burt you are going to be fine

All I dreamt about during the night was duty ... causation ... breach ... damages ... and then how strict liability removed privity from duty and made it just about causation, which was a failed argument for duty in Strauss v. Belle Realty. Stupid brain.

Products liability is weird because historically there have been approaches from both the contract/warranty side (where the privity came in) and from the negligence side. But today it has more to do with negligence and not much of anything to do with warranty.

Did you guys do RAD and the consumer expectations test and all that? My professor loves RAD. He was one of the reporters on the third products liability restatement, or rather the, ahem, "Restatement Third."

I think I dreamed about the Calder "effects" test and the stream-of-commerce-plus theory and what targeted wrongdoing into a state means for personal jurisdiction. CivPro is a bitch. Today my day consists of outlining the FRCP.

Nah, we only did 2 or 3 absolute liability cases, and we ended at... Posner, and one of his decisions where he states strict liability is OK for x circumstances, and negligence is better for y due to economic interests, etc.. Most of our time was spent on the theoretical underpinnings of negligence, duty, causation, etc. Only now I'm starting to see how it all works together.

Civ Pro is going to be way easier to study for than torts.

ok, Hurting or others who remember torts, is this right ... for each problem you first establish duty, then see if that duty was breached, then run that through the causation to see whether or not it survives the but-for or proximate cause tests or whatever, and then assess the damages.

sounds about right.

ok, good. Now I just need to reread the rest of duty and causation, and then go back to negligence and other stuff. Now that I'm starting to "get it all", it adds a lot to look over the cases again. :[]

well the case books break it down. duty cases. breach cases. causation cases, etc.

Yeah, but nobody tells you how to make it all work together in your own arguments.

Regarding the question we were talking about Hurting, I don't think a general duty of care can apply in that circumstance, hence the trouble working through it ... a general duty of care is owed to others through action, not inaction, which is why I tried to manufacture some kind-of special relationship that imposed affirmative duties. If I said "general duty of care", I'd probably fail that part.

^ structure seems about right xp, I'd stick to it quite closely. The number of shitty answers I've written by trying to do the clever bits first, forgetting about the simple stuff and eventually only scraping a pass. Remember the first 50% or whatever are the easiest marks to get.

yes! I was right. Maybe I won't do as terribly as I think.

"As we shall explain, however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim."

In the scenario above I imagined the defendant would file a crossclaim stating that his friend breached a duty of care in not preventing his drunk driving due to their special relationship as close friends and other concerns which state affirmative duties of care when one friend sees another in a foreseeably perilous situation (which is an argument that's worked a few times in a few cases I've read).

It's a weak argument, but hopefully something like that would get a point or two.

Nice, the notes are now confirming my approach. "The most common approach for assigning affirmative duties to control the foreseeably dangerous conduct of another is to create new special relationships." Anyway, back to work.

I still think that wouldn't need to apply here because you're talking about her controlling dangerous conduct toward her own property. But I guess you can argue it either way. Bottom line is go through the steps and do the analysis.

The way my prof basically breaks it down is like this:

- in most cases there's a general duty of care (act reasonably under the circumstances to avoid causing harm)
- in a small minority of cases, you can use "limited duty" rules to do away with duty (e.g. no duty to rescue strangers)
- in some of those small minority of cases, there are exceptions to the limited duty rules (e.g. you DO have a duty to rescue in special situations -- parent-child, spouse, contractual, actions have created or increased the peril, etc.)

We didn't do any cases that I can think of that were specifically about controlling the behavior of others. We did read a bit about social host liability with intoxicated guests. Generally there's limited or no liability, but there were exceptional example cases where the host was in a good and unique position to prevent a guest from driving and it was exceedingly obvious that the person should have been driving. It's a tough hypo I think.

Man, I wish my professor went over that stuff. He only mentioned it the last day of class. "Remember students, what we're looking for is duty, breach, causation, and damages." And we were all like, "wait, this stuff is supposed to go together?"

What I was thinking is that the lady would argue nonfeasance for her conduct in order to collect full damages ... she had no duty of care beacause she took no action in relation to driving + drinking, since due to his spotless driving record, etc., it's not negligent entrustment. General duty of care completely inapplicable here since it only relates to action. But the defendant can argue that the plaintiff owed him a duty of care under a special relationship, and since she failed that, she's partially responsible for the damages to her own car. It's a stretch, but he obviously wants us to consider these nuances, Iguess.

A general duty of care can never, ever be used when there's no action (nonfeasance) unless you can argue for special relationships or statutes.

No, most negligence cases involve general duty of care. If I shoot a gun up in the air, and a bullet comes down and hits you, do I have to have some special duty to you for you to recover?

An action is created out of the breach of the general duty of care. That's how I learned it, anyway. We didn't use the term "nonfeasance." But I guess that's the problem with people from two different torts classes trying to compare notes.

That's misfeasance, or an action taken by you that affects another person. Nonfeasance is someone watching you playing with a gun and it looks dangerous to other people, and he walks away without saying anything. Should he be held responsible if you shoot someone? He can't. Unless it's possible to argue some kind-of special relationship he had with you or a statute regarding the conduct... those are the only ways to apply duty to nonfeasance.

Misfeasance is one half of duty, nonfeasance is the second half.

ILX accepts no liability for the failure of burt_stanton, law student, on any of his 1L exams.

Why, am I totally wrong here? :{

Oh, nevermind. I'm in a "zone" here.

ah ok, nonfeasance = non-action or omission

spent 11:00 am - 9:00 pm in the library. not a bad haul. of course the damn Asian kid was still there when I left. Damn him to hell.

lol!