« on: April 30, 2005, 04:38:37 PM »
Here's my PETITION IN INTERVENTION and Motion to Consolidate (I'm not sure why there were two identical topics posted in different areas of this board and this one was under Acceptances)
Yes, the common-law doctrine of assumption of the risk has been largely abrogated by comparative negligence schemes. That's why the question would be a little odd on a law school exam. However, I think you would approach it as follows:
ISSUE: The issue is whether a person attempting a rescue who enters into a vehicle when the driver has informed the person that the driver has been drinking would be barred from recovering for injuries caused by the driver by the assumption of the risk statute.
RULE: The rule is that where a plaintiff voluntarily and knowingly assumes a risk, the defendant has a defense of assumption of the risk that precludes the plaintiff from recovering. The statute creates no exceptions for minors. However, one exception where the assumption of the risk defense does not apply has to do with an emergency situation. The emergency exception is reflected in the language of the statute because B did not voluntarily assume a risk created by the emergency.
APPLICATION: Here, based solely on the facts presented, an emergency exists because A has a broken leg and is incapable of walking and is helpless in the wilderness as night is falling. B, who has no other alternative because it is a lonely road and B has already waited for a long time before this one car has appeared, is reacting to that emergency and is trying to rescue A.
CONCLUSION: Therefore, because an emergency exists in a rescue situation, the assumption of the risk defense may not apply to B and B may seek a recovery from the driver for B's injuries.
Now, I'm not saying that the person who posted the hypothetical "fact pattern" above wrote the perfect Torts question. However, it does show that sometimes test questions, when you're confronted with them under time pressure, seem ambiguous and you want more information.
You may ask yourself: well, is it an emergency, was the femur broken, how far were they from a ranger station? But all you have are the facts as presented and perhaps 30 minutes or so to write an answer. And remember, there is just one exam determining your whole grade for the semester. I've even been told that some law professors say before the test, you have all the facts you need to answer the question. So, you just have to take the facts as presented and try your best to come up with an answer.
You can also see how hard it is to stay on topic. Inevitably, you get out of the test wondering if you addressed all the issues, and you start to worry.
Then another student comes up to you and says, "Did you get the strict products liabilty issue?"
You say, "What strict products liabilty issue?"
And the other student says, "The car went out of control, strict products liability."
For a moment, you panic. Could the other student be right? Of course, you don't have the exam with you because you had to turn in both your blue book and the test question to the professor. You seem to remember that the call of the question asked you to address whether B could recover for his injuries against the driver. But the call of the question had some kind of typo in it (something like, "against his injuries"). You just ignored the typo because it was just a typo. Or was it? Did you just make a horrible mistake? Could the other student be right? You don't know. Then you start to convince yourself you blew it. And you won't know for several weeks if you did blow it--until the grade comes back. But tomorrow, you have your Contracts final and you've got a 50 page outline and you'd better get to studying.
It has been said by others that when students use the IRAC method (Issue, Rule, Application, Conclusion) to write their answers, the area where most students fall down is the APPLICATION section. The Application needs to apply the law to the facts. Now, there are some law school professors who want to see a policy discussion, but many advise not to assume that the professor cares about policy. Many do not. If you spend your precious time writing about policy on an exam given by a law professor who doesn't care about policy, your grade suffers. Many issue-spotter exams test exactly what their name implies, the ability to spot issues. Often, the conclusion that you reach is not the most important part of the exam; but you should reach a conclusion. See Eight Secrets to Top Exam Performance in Law School, Charles Whitebread.
Again, I'm not saying that the person who wrote the fact-pattern above wrote a great law school exam question. However, sometimes the most brief, the most ambiguous, the most sketchy, fact pattern can be the most difficult. That's why in ONE-L, the feared Contracts professor who always wanted to be known as the most difficult professor at Harvard Law School gave his students for their one and only final exam "a disordered series of phrases of various nursery rhymes." Scott Turow, One-L, (Warner Books 1977) p. 268.