Friday, April 16, 2010

Final exams looming

The outside world is once again disappearing as final exams approach. This morning I printed out my outlines -- roughly 20 pages per class -- and hammered staples into each one. For the next 13 days, these stacks of paper will take over my life. They will be scrutinized and memorized. They will join me for coffee in the morning, for study group sessions in the afternoon, and for a few hours in the evening (I draw the line at the bedroom. Nobody but my wife and John Grisham get near the sheets.)

So, what the heck is an outline? For the uninitiated, it's basically a long list of condensed notes from the cases we have read all semester. Black-letter rules are explained. Important cases are noted.  Lots of Roman numerals in between. No two outlines are the same, and what works for one person might seem like total garbage to another. Here's a sample from the first page of my Torts outline (I always put a quote from the professor near the top. I'm still not sure why I do this).

Leibson, Spring 2010
If I’m the owner of the Corbin Motor Lodge, I’m standin’ on my head spittin’ wooden nickels.” – Leibson, Feb. 17

* Negligence revisited, elements
            1. Duty owed by defendant to plaintiff
            2. Breach of duty
            3. Causation between duty breached and injury
            4. Injury
I. Intervening causes
A. Definition: an act, by a third party, that occurs after the original negligent act, and before the injury inflicted on the plaintiff.
1. Consequences that follow in unbroken sequence, without intervening cause, from original negligent act, are natural and proximate.
2. Recovery or not?
a. Complete lack of foreseeability of result = no recovery
b. No foreseeability of manner in which result happens = recovery.
c. Leibson: so long as some damage can be foreseen and you are negligent, any damage traceable to negligence can be recovered.
B. Moral element: factors such as imputable knowledge, justifiable ignorance, and D’s intent are often taken into account, but when injury is intentional, courts often stretch to find causation. If injury not intentional, courts often stop at earlier stage of causation.
            C. Palsgraf
1. Leibson: in order for negligent D to have to pay injured P, there must be a foreseeable risk to the plaintiff that establishes a relationship between D and P. Relationship is established by a duty, which is created by foreseeability.
2. Leibson: one word that drives liability in negligence: foreseeability, for both duty and proximate causation.
3. Dissenting judge: we owe a duty to everyone in world, not just particular Ps .
4. Mother of all nuggets: The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation. AKA, the foreseeable risk defines the duty to be obeyed within the zone of danger/range of apprehension. (aka, you must have a relationship to have a duty)
5. Negligence is not actionable unless it involves invasion of legally protected interest or the violation of a right.

II. Superseding causes
A. A superseding force is not foreseeable by the party that creates the original negligence. A person must foresee the “normal consequences” of his conduct, but is not responsible for extraordinarily negligent intervening acts of third persons (or entities)
B. Leibson: the risk reasonably to be perceived drives the foreseeability, and therefore the issue of whether the cause is superseding.
C. Criminal acts: in Watson v. Ky, court says bridge company could not have foreseen malicious and criminal act (of lighting match) and therefore act of third party criminal is superseding cause, cutting off liability for bridge company that spilled fuel. Ky has since overruled stance, now says criminal act doesn’t always cut off chain of causation.
D. Suicide – in general, court may allow recovery for suicide based on irresistible impulse, but not for “considered and rational” decision. Other courts disagree, say even when there is mental disorder, suicide is a new and independent cause of death.
1. Leibson: under comparative fault argument, victim’s suicide might be tied to failure to seek medical treatment for seizures.
2. Eggshell plaintiff: take victim as you find him.

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