Going To Law School

We then spent two days debating how one could impose liability across the board on people who comitted the negligent act and those who did not... and I suppose it fit into how market share liability in the DES cases worked, too. Hmmm.

different from market share liability

Of course it's different, but it was the same principle at debate ... Ybarra was one of the central cases used by the plaintiff in Sindell v. Abbott

market share liability = everyone breached the standard of care in the exact same way by making the exact same product. All were negligent, but problem is you can't prove cause.

res ipsa in Ybarra = not all parties actually breached the standard of care

and I think the majority concluded that an almost Ybarra like solution would come about if they made the major market players liable ... in that they would file crossclaims to others in hopes of finding all the truly liable parties. As in, an impetus to find who's truly liable.

All weren't negligent in the DES cases ... you can't be negligent if you can't show causation, and since it's reasonable to assume only 1 manufacturer provided the drugs out of 200, then there are a lot of manufacturers who didn't directly cause the plaintiff's injury. It was one plaintiff suing for damages to her, not some across the board thing. (Hymowitz is the one where all the DES cases were revived by legislature)

Ybarra: "We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of his medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct."

All weren't negligent in the DES cases ... you can't be negligent if you can't show causation

Sorry, I'm speaking using a quirk of my professor, which is that he separates negligence in terms of conduct from liability. The way he uses it, negligence just = conduct that breaches the standard of care.

So what I mean is that all the manufacturers of DES breached the standard of care by making the same dangerous product.

Whereas not everyone in the operating room in Ybarra actually did anything wrong.

Oh, weird ... I mean yeah, they all breached a duty by falsely advertising a dangerous drug which they know was unsafe and ineffective as being safe and ineffective, but the argument was they couldn't all possibly be held as negligent, so I think the court chose the ones with the biggest market shares since they were the ones most likely to have caused the plaintiff's injury.

But if I remember that correctly, that's such a weird friggin decision ... like, using statistics to define causation, and isn't that no good?

yeah, Ybarra was declared as easily definable

and I think the majority concluded that an almost Ybarra like solution would come about if they made the major market players liable ... in that they would file crossclaims to others in hopes of finding all the truly liable parties. As in, an impetus to find who's truly liable.

Did they? I'm not sure about that. It would be awfully difficult to figure out who sold specific DES to a hospital a couple of decades earlier. Plus there's the problem that the specific manufacturer may not even be in business anymore.

Isn't it that liability is paid by all relevant manufacturers proportional to market share? I don't know -- we read Sindell but we didn't spend much time on market share liability beyond just teasing out a bunch of problems with it.

That was at the end of the majority opinion in Sindell ... it was about shifting the burden to show causation (like a modified Summers v. Tice), and they said it would inspire the manufacturers to file crossclaims to other manufacturers in order to find the real killer. I'll skim through it again, though I'm not sure how likely it is this type of question will show up on the exam.

xpost but I guess you're right -- market share liability would probably in some cases encourage cross-claims to determine true liability

yeah, I see what you're saying. In that way I guess it is a lot like Ybarra.

ugh, now I need to look up the ideas behind shifting the burden of causation :[]

How about this? I'll start throwing out random torts questions for you guys. Smaller ones, but they'll have some arguable points that might help.

A laundry delivery guy is on his route around 11:30. Having not eaten lunch, he decides to stop into a diner. His employer has not made any statement one way or the other about when or where their employees can take lunch, so long as their deliveries are made on time and to the right address. The delivery guy parks his car on the curb in front of the diner, but forgets to engage the park brake. The park gear fails, and the truck rolls down the hill on which it is parked, and is then hit by a drunk driver who crossed into the intersection illegally on a red light. The collision causes the truck to be pushed into a crowded intersection, where it hits a man crossing the crosswalk with the light. The man is killed instantly. His family brings a suit against the drunk driver, the truck driver, the the launder owner and the truck company. How would you apportion liability in this situation? Discuss. Assume that you are in a comparative liability jurisdiction.

Reading over that post, I would puke if I got that on my first law school exam. Give it a go, though.

At least I recognize all the potential issues there... respondeat superior, cause in action, proximate cause, contributory negligence, etc.

Hmmm... should the laundry truck driver be held liable for the death of the man? Is that truly a foreseeable outcome in the scope-of-the-risk test? Sure, he is directly responsible, but that outcome is remotely related to his failure to lock his park break. Oh, this isn't so bad...

not directly responsible, but it's a part of the whole event. but, the chain of events at that point is remote from just his failure to lock the break. I'll do more later. Have any more to post?

I don't have a correct answer for it. I just made it up. Do an outline for a potential answer.

I'll see if I can come up with more as the day goes on. I'm being thrown a bushel of hand grenades this morning.

A laundry delivery guy is on his route around 11:30. Having not eaten lunch, he decides to stop into a diner. His employer has not made any statement one way or the other about when or where their employees can take lunch, so long as their deliveries are made on time and to the right address. The delivery guy parks his car on the curb in front of the diner, but forgets to engage the park brake. The park gear fails, and the truck rolls down the hill on which it is parked, and is then hit by a drunk driver who crossed into the intersection illegally on a red light. The collision causes the truck to be pushed into a crowded intersection, where it hits a man crossing the crosswalk with the light. The man is killed instantly. His family brings a suit against the drunk driver, the truck driver, the the launder owner and the truck company. How would you apportion liability in this situation? Discuss. Assume that you are in a comparative liability jurisdiction.

blam, when you approach these problems ... no matter what, in all circumstances, you first go through: duty. then breach. then causation.

Right?

I cannot even think about a torts hypo right now. I just did a complex 2-hour practice civil procedure fact pattern, and it was probably the greatest mental exertion I have ever made.

Goddamnit, thank GOD I am stubborn and didn't listen to the guy in my study group who kept saying "We don't need that... I'm not putting that in my outline... that's just a minor note case... etc." So far ALL the practice questions I've done hinge on minor stuff from note cases. FUCK I am so glad I am hard-headed.

I hate those stupid note cases.

so easy to forget

Stanton (and anyone else) maybe you can hep me out on civpro. I understand basically how Subject Matter and Personal Jurisdiction work, but we keep getting these questions about what "motions" and "procedural moves" parties can make:

If you're talking SMJ, the only things I can think of are
- Motion to dismiss for lack of subject matter jurisdiction
- Motion to remand (to state court)

If it's PJ, I can think of
- motion to dismiss for lack of personal jurisdiction (12b2 I believe)
- special appearance (state court only)
- don't show up, wait for the default judgment and then attack jurisdiction in the action to enforce the judgment

What else should I be thinking about?

blam, when you approach these problems ... no matter what, in all circumstances, you first go through: duty. then breach. then causation.

Absolutely. With negligence questions, which will undoubtedly be the bulk of your torts exam, ALWAYS run throug

1. Is there a duty? Where does that duty come from? What is the standard of care established by that duty?
2. Was that duty breached, or, was that standard of care not met? The answer to this portion should ALWAYS be "The defendant breached because they failed to meet the standard of care when they [fill in the blank]."
3. Was there a harm caused by that breach? I know this is asked below in the "damages" portion, but its a good thing to look at here - no harm, no negligence. So this can cut off your analysis and you can move on to the next one, if no harm was suffered.
4. Was the breach the actual cause of the harm suffered? Usually the "but for" portion of the program.
5. Was the breach the proximate cause of the harm suffered? Foreseeability, plus all those doctrines that the law has for cutting off liability. The basic proximate cause question is "Is this the type of harm that a person in defendant's position would be found liable for?" This is where intervening causes and all those other things come up.
6. What is the measure of damages suffered by plaintiff?

But you should ALWAYS establish each and every element of a negligence analysis. Just like all the elements on an intentional tort, and all the elements on a criminal law question. Without every one being established, no liability will attach.

tasty. Thanks, I'll tattoo that on my arm

I feel like shit. I'm done studying. If I do OK, I do OK.

good luck burt 'n' hurt

blam, in your hypo above, what recourse does the person have who was hit when the drunk driver crashes into the truck? what's your analysis? I have a bunch of exam problems here that have similar situations.

I mean, the only thing I can get to is "not foreseeable under the scope of the risk, thus truck driver not liable". But what can the person hit by the car do? Recover nothing?

hold the truck driver and drunk driver joint and severally liable?

should the drunk driver be held liable because, under the scope of the risk analysis, crashing into something is foreseeable risk of drunk driving, and a crash is a foreseeble danger to anyone around since it involves high speeds, huge metal things, etc.? Of course the truck driver shouldn't because that's definitely not a foreseeable risk of forgetting to set the brake

A car rolling down the hill and causing an accident is DEFINITELY within the scope of the risk of not setting the brake. That's a classic "manner of harm" example -- it doesn't have to be foreseeable that a drunk driver will crash into the car, just that it will cause an accident.

sorry truck I mean

Even if not, he may be able to recover against either the laundry company for failing to maintain the truck or the truck maker for a defective park gear (if it is in fact defective).

And as for this:

should the drunk driver be held liable because, under the scope of the risk analysis, crashing into something is foreseeable risk of drunk driving, and a crash is a foreseeble danger to anyone around since it involves high speeds, huge metal things, etc.?

I think so. First of all his conduct is a gross breach of the standard of care (drunk-driving, running a red light). Second, he is a but-for cause (the truck would not have been pushed into the pedestrian otherwise), and your argument about proximate cause sounds right.

Interestingly, if the case didn't involve running the red light, it'd probably be harder to prove causation. After all, even a sober, responsible driver might have hit the runaway truck.

I THINK that since they're jointly the but-for cause and neither would be the but-for cause alone, you would hold them jointly and severally liable.

I'm pretty sure you're both going to do fine. Just take your time and run through your negligence analysis on each and every issue. You've hit all the major arguable points.

Go get some sleep. Eat a good breakfast. Rock it. Good luck. Report back to us.

But I have CIVPRO tomorrow. CIVPRO. Help me with CIVPRO

Stanton, just remember this:

I'm pretty sure you're both going to do fine.

doing fine = passing. B+ maybe. the curve is a bitch. only the try-harders will get the A+'s.

or the test-taking geniuses. IT'S ALL ABOUT TEST TAKING.

damn them to hell. Civ Pro's a bitch, good luck... I'm glad I have more time to study for that. 6 days + 12 hours a day = B+ if I'm lucky.

Well, that was stupid. I was wayyyyyy overprepared. Conversely, I don't think I did all that well. :[] We'll see.

all I did was duty. breach. causation. damages. but I didn't mention anything about fancy theories and doctrines and shit the other students were talking about.