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Messages - Dean Prosser

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31
General Board / Re: Funny Torts Hypo
« on: November 18, 2004, 12:35:19 PM »
Hmmm...we did not cover assault, only battery.  We did not cover emotional distress either.

I see your points Dean Prosser.  My eyes are now open.  Do you think it would be helpful to make a checklist and just run down the checklist during the exam...checking to see if anything applies?



I think you should make an outline of all the possible issues and causes of action, and also the defenses to them.  Then rank them in a hierarchy to discuss them.  So in this hypo, Assault would be #1, then Battery, then Trespass, then IIED, etc. 

Even though I have written many Torts Casebooks, Law Review articles, testified before congress, and am deceased (testate, of course), I have never taken a Torts exam, but assuming the nature of this area of law, the more causes of action you can “make,” the better - even if you find them so ridiculous as I do!

32
General Board / Re: Funny Torts Hypo
« on: November 18, 2004, 02:18:29 AM »
How about:

Assault, and Battery (the offensive contact) through Transferred Intent
Trespass to Land by Bob, because he put Sally into motion.  Sally didn't intentionall trespass (This is a Big issue, because you can argue that Sally intentionally went on to Alex's land to avoid Bob and this would make her liable for Trespass to Land)
IIED - that's an issue, did Bob intend to cause SED?  Perhaps.
Trespass to Land by Fire Department - they have a defense, a Public Necessity to enter.
Conversion?  You can't convert a tree, it's considered Real Property, but an issue to discuss.

Damages?  Bob would have to pay Sally for for ED damages (if IED was argued) and Car damages from Assault/Battery - he would also pay Alex for tree and any damage.  Perhaps Sally would pay nominal damages for a trespass to land.  Fire Department having a public necessity have a complete privilege and pay no damages.

33
General Board / Funny Torts Hypo
« on: November 17, 2004, 05:16:11 PM »
"Bob is driving his car down the street when he sees Sally, his ex wife, driving in the opposite direction.  Bob, who is in bitter divorce proceedings with her, swerves his car towards her at high speed and at the last second swerves back into his own lane.  Sally in an attempt to avert the collision, pulls her car sharply to the right, loses control and enters Alex's front yard smashing into a tree.  The fire department has to cut up the tree in order to free Sally from the car.  She suffers a nervous breakdown and other physical injuries."

Discuss all parties' liability.


What (main and small) issues would you write about???

34
General Board / Re: Funny Contract Hypo...
« on: November 11, 2004, 09:23:20 PM »
Come on bombs, now your in the conjecture club.  Of course a promise can be supported by consideration.  Most contracts are promises supported by consideration!  But as the great lawyer that you are, you should also see the Defense argument, and not the obvious Bi lateral K argument, right?  I hope you do or else you will be surprised many times in your career. 

Your assertion that 'coming over' was part of the bargain is completely ludicrous. Coming over is merely a suggested time and manner of performance. What if Jane had said she would 'bring over a check'...is there no K if she pays in cash?

That's all I have to say about this. You have no idea what you are talking about. Sorry. I suggest you pick up Calamari and Perillo on Contracts, and read the chapter on mutal assent very carefully.

Talk about context dropping, do you work for the NY Times? 

"From a reasonable offeree (Mary is now the offeree) position, the offer is ambiguous, thus indifferent, meaning *Mary* can accept either by promise or performance.  Common Law would presume Bilateral, Modern Law would presume either.  With that, Mary could bring a defense that she was accepting the ambiguous offer through performance, and Jane did not perform and thus, she rejected the offer when she sold the car to someone else."

35
General Board / Re: Funny Contract Hypo...
« on: November 11, 2004, 08:33:54 PM »
Come on bombs, now your in the conjecture club.  Of course a promise can be supported by consideration.  Most contracts are promises supported by consideration!  But as the great lawyer that you are, you should also see the Defense argument, and not the obvious Bi lateral K argument, right?  I hope you do or else you will be surprised many times in your career. 

36
General Board / Re: Detrimental Reliance Hypo
« on: November 11, 2004, 08:22:48 PM »
An interesting case of (possible) Detrimental Reliance:

http://www.thesmokinggun.com/archive/1111041coco1.html

Look at item 15...  Detrimental Reliance?



Absolutely worth hearing... although I hate to say as much :)

I'm interested to know what you thought of the language of the complaint.  It was very systematic, and it certainly answered as to all of the elements required for all of the c.o.a.'s it asserts. In fact, it seemed like the author was working straight of the R2T with a little Cali jurisdictional twist.


That is a systemati approach, and the lawyers used the facts to fit the rule, and of course added some "spicy" words, you know, to ease the fit  ;)  Hmmm, let's do that on our exams!

37
General Board / Re: Detrimental Reliance Hypo
« on: November 11, 2004, 04:30:43 PM »
An interesting case of (possible) Detrimental Reliance:

http://www.thesmokinggun.com/archive/1111041coco1.html

Look at item 15...  Detrimental Reliance?


38
General Board / Gore v. BMW - WTF?
« on: November 11, 2004, 12:49:09 PM »
BMW of North America, Inc. v. Gore (94-896), 517 U.S. 559 (1996)

Can anyone please explain to me how this does not "shock the law student conscience?"  How could a court even *consider* allowing ONE person to recover punitive damages on behalf of MANY people in ALL 50 states for apparent "fraudulent business practice" which was reduced to 25 states after research showed this is prudent businessmanship in those states.  I am not talking about the reasoning of a Class Action suit, but this particular case says to me that Alamaba is a Shama.   

One Car = $4k in damages + $4 million dollars in punitive for every car sold to other people (reduced to $2mil).

Talk about a windfall! 

What say you, counsel?

39
General Board / Re: Detrimental Reliance Hypo
« on: November 11, 2004, 02:13:55 AM »
Sorry, last post was inconclusive... the text further says:

"Recognition of the doctrine of promissory estoppel as an independent ground for enforcing intrafamily promises can lead to a profitable reexamination of many similar cases decided on grounds of consideration."

When discussing this hypo, you also must consider that this *is* a family relationship, which may make the plaintif niece prove up that she completely, expressly, impliedly, concurrently, concomitantly, relied on her uncle's promise for an estoppel theory. 

Sidenote:  The courts are divided as to recovery if she visited France.


40
General Board / Re: Detrimental Reliance Hypo
« on: November 11, 2004, 02:03:02 AM »
Calamari and Perillo on Contracts - 5th edition - page 258 - Promissory Estoppel

(a) Promises in the family
"In Devecmon v. Shaw, an uncle promised his nephew that, if the nephew would take a trip to Europe, the uncle would reimburse the nephew's expenses.  The nephew made the trip but the uncle died and his executor refused to make payment.  The court concluded that the uncle's promise was supported by consideration.  Surely there was detriment, but the court did not consider whether the detriment was bargained for in exchange for the promise."


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