Law School Discussion

Memoirs of a Bar Examinee

Burning Sands, Esq.

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Re: Memoirs of a Bar Examinee
« Reply #230 on: June 22, 2007, 05:50:59 PM »
OK, I need you guys' help on this one.  Torts Question #56 in the Red Book, I strongly believe contains an incorrect statement of law in its explanation.

Its the one where the attractive girl is riding on the plane and the obnoxious male passenger gets drunk from the stewardess handing him drinks, and then the obnoxious guy loses his mind and smacks the attractive girl in the mouth because she won't give in to his sexual advances.  You guys remember that one?

It has two questions.  In the first question (#55) the girl brings a suit against the airline for negligence.  The question is can she win?  That answer is of course, yes; the airline is a Common Carrier, and as such, will be vicariously liable for the negligence of its employees.  The stewardess was an airline employee, she kept serving the guy alcohol, she either knew or should have known that her conduct may result in harm to somebody, namely the victim.

That one I have no problem with. That's a straightforward application of Common Carrier liability for its employees. 

The second question, however (#56) is a huge contradiction.  It says, same facts but assume the victim brings a claim against the airline for Battery (an intentional tort).  What result?

The answer, as you might know, is that Common Carriers are NOT vicariously liable for the intentional torts of its passengers.  Answer choice (C) embodies this principle.  It says that the attractive female passenger who was hit in the mouth by the obnoxious male passenger will "not prevail, unless [obnoxious male passenger] was an employee or agent of the airline."  Meaning, that a Common Carrier would only be vicariously liable if the intentional tort was committed by an employee.  This would seem to exclude passengers.

If you check the answer in the back of the Torts chapter, choice (C) above is the correct answer. 

BUT...then they go and mess up my universe.  At the end of the answer explanation they say that "a Common Carrier may be held vicariously liable for the intentional torts of its passengers." 

WTF??

Dude, which one is it?  They can't BOTH be true, PMBR.  I have no idea whether that last sentence in the PMBR explanation is true or not true. All I do know is that if it IS true, then the answer sure as hell can not be (C).


HELP

smujd2007

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Re: Memoirs of a Bar Examinee
« Reply #231 on: June 22, 2007, 06:02:33 PM »
You know what . . .I thought that was a little weird, but I just kind of shrugged it off, because we didn't cover that in torts, so what do I know?

I'm going to look at it.  But I don't think the common carriers are responsible for the intentinoal torts of passengers . . . it doesn't fit in, broadly speaking, with tort law. . . .

Let me see . . .

OK, I need you guys' help on this one.  Torts Question #56 in the Red Book, I strongly believe contains an incorrect statement of law in its explanation.

Its the one where the attractive girl is riding on the plane and the obnoxious male passenger gets drunk from the stewardess handing him drinks, and then the obnoxious guy loses his mind and smacks the attractive girl in the mouth because she won't give in to his sexual advances.  You guys remember that one?

It has two questions.  In the first question (#55) the girl brings a suit against the airline for negligence.  The question is can she win?  That answer is of course, yes; the airline is a Common Carrier, and as such, will be vicariously liable for the negligence of its employees.  The stewardess was an airline employee, she kept serving the guy alcohol, she either knew or should have known that her conduct may result in harm to somebody, namely the victim.

That one I have no problem with. That's a straightforward application of Common Carrier liability for its employees. 

The second question, however (#56) is a huge contradiction.  It says, same facts but assume the victim brings a claim against the airline for Battery (an intentional tort).  What result?

The answer, as you might know, is that Common Carriers are NOT vicariously liable for the intentional torts of its passengers.  Answer choice (C) embodies this principle.  It says that the attractive female passenger who was hit in the mouth by the obnoxious male passenger will "not prevail, unless [obnoxious male passenger] was an employee or agent of the airline."  Meaning, that a Common Carrier would only be vicariously liable if the intentional tort was committed by an employee.  This would seem to exclude passengers.

If you check the answer in the back of the Torts chapter, choice (C) above is the correct answer. 

BUT...then they go and mess up my universe.  At the end of the answer explanation they say that "a Common Carrier may be held vicariously liable for the intentional torts of its passengers." 

WTF??

Dude, which one is it?  They can't BOTH be true, PMBR.  I have no idea whether that last sentence in the PMBR explanation is true or not true. All I do know is that if it IS true, then the answer sure as hell can not be (C).


HELP

Burning Sands, Esq.

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Re: Memoirs of a Bar Examinee
« Reply #232 on: June 22, 2007, 06:15:05 PM »
Where's Alci when you need him? :P

smujd2007

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Re: Memoirs of a Bar Examinee
« Reply #233 on: June 22, 2007, 07:12:41 PM »
Sands . . .

I went to the BarBRi outline . . .it doesn't cover this, I don't think.

Then, I thought about going to the PMBR outline, and figured that it might not be the most reliable thing at this point . . . since we are confused . . .

So I used my summer access to Westlaw to look up the relevant restatement provision . .

Restatement says that a common carrier is responsible for the intentional torts of a passenger, if they were foreseeable or if the common carrier knew about them. That would be under a theory of negligence, however, not battery. See the relevant restatement provision, especially comment E.  I would have linked it but you can't do that with Westlaw . . .

If the intentional torts create an unreasonable risk of physical harm, then the common carrier can be liable for negligence.

So, the bottom line is . . . no, there is not an error, its just not the most complete explanation in the world.

Hope this helps (and/or makes some sense!)




You know what . . .I thought that was a little weird, but I just kind of shrugged it off, because we didn't cover that in torts, so what do I know?

I'm going to look at it.  But I don't think the common carriers are responsible for the intentinoal torts of passengers . . . it doesn't fit in, broadly speaking, with tort law. . . .

Let me see . . .

OK, I need you guys' help on this one.  Torts Question #56 in the Red Book, I strongly believe contains an incorrect statement of law in its explanation.

Its the one where the attractive girl is riding on the plane and the obnoxious male passenger gets drunk from the stewardess handing him drinks, and then the obnoxious guy loses his mind and smacks the attractive girl in the mouth because she won't give in to his sexual advances.  You guys remember that one?

It has two questions.  In the first question (#55) the girl brings a suit against the airline for negligence.  The question is can she win?  That answer is of course, yes; the airline is a Common Carrier, and as such, will be vicariously liable for the negligence of its employees.  The stewardess was an airline employee, she kept serving the guy alcohol, she either knew or should have known that her conduct may result in harm to somebody, namely the victim.

That one I have no problem with. That's a straightforward application of Common Carrier liability for its employees. 

The second question, however (#56) is a huge contradiction.  It says, same facts but assume the victim brings a claim against the airline for Battery (an intentional tort).  What result?

The answer, as you might know, is that Common Carriers are NOT vicariously liable for the intentional torts of its passengers.  Answer choice (C) embodies this principle.  It says that the attractive female passenger who was hit in the mouth by the obnoxious male passenger will "not prevail, unless [obnoxious male passenger] was an employee or agent of the airline."  Meaning, that a Common Carrier would only be vicariously liable if the intentional tort was committed by an employee.  This would seem to exclude passengers.

If you check the answer in the back of the Torts chapter, choice (C) above is the correct answer. 

BUT...then they go and mess up my universe.  At the end of the answer explanation they say that "a Common Carrier may be held vicariously liable for the intentional torts of its passengers." 

WTF??

Dude, which one is it?  They can't BOTH be true, PMBR.  I have no idea whether that last sentence in the PMBR explanation is true or not true. All I do know is that if it IS true, then the answer sure as hell can not be (C).


HELP

Re: Memoirs of a Bar Examinee
« Reply #234 on: June 22, 2007, 07:27:59 PM »
I didn't look at the restatements (good idea, smujd). But I did look at an Emanuel's outline that I have. (Well, I looked at a few things, but most had nothing on this topic). Anyway, what I came up with was basically the same idea. That is, the common carrier could be liable under negligence for not protecting passengers, but not vicariously liable for the intentional torts.

The vicarious liability answer, D, goes to the the fact that they are vicarious liable, but liable for negligence, not for battery. (Had to read that one over a few times).

Burning Sands, Esq.

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Re: Memoirs of a Bar Examinee
« Reply #235 on: June 23, 2007, 09:25:26 AM »
I think I am seeing what you guys are saying....SMU & Slacker, you guys are saying that the restatement says that a Common Carrier can be liable for the INTENTIONAL torts (such as batter) committed by its passengers BUT it will be held liable for those intentional torts because of their Negligence in preventing the battery, not the battery itself.  So the rule is, just as the answer states in the back of the book, a Common Carrier may be vicariously liable for the intentional torts of its passengers...

A more complete statement of the rule would be "a common carrier may be vicariously liable for the intentional torts of its passengers THROUGH NEGLIGENCE."


The other rule that I have seen is that common carriers may be vicariously liable for intentional torts committed by its employees.  As in, the airline could be sued for straight up battery if an employee halled off and punched somebody in the mouth.  (Thus, the answer (C) uses the words "not prevail, unless guy was an employee") If a passengers halls of and punches somebody in the mouth, the airline is still liable, but not for battery (because it didn't act through its agent); rather it will be liable for negligence in preventing the passenger-to-passenger battery.



OK.  Got it!


Good team effort right there!  That one took some brain power. ;D




smujd2007

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Re: Memoirs of a Bar Examinee
« Reply #236 on: June 23, 2007, 04:35:12 PM »
Its this kind of deep thought and analysis that will help us pass the first time!

 :) ;) :) ;)

Re: Memoirs of a Bar Examinee
« Reply #237 on: June 24, 2007, 07:28:28 AM »
I think I am seeing what you guys are saying....SMU & Slacker, you guys are saying that the restatement says that a Common Carrier can be liable for the INTENTIONAL torts (such as batter) committed by its passengers BUT it will be held liable for those intentional torts because of their Negligence in preventing the battery, not the battery itself.  So the rule is, just as the answer states in the back of the book, a Common Carrier may be vicariously liable for the intentional torts of its passengers...

A more complete statement of the rule would be "a common carrier may be vicariously liable for the intentional torts of its passengers THROUGH NEGLIGENCE."


The other rule that I have seen is that common carriers may be vicariously liable for intentional torts committed by its employees.  As in, the airline could be sued for straight up battery if an employee halled off and punched somebody in the mouth.  (Thus, the answer (C) uses the words "not prevail, unless guy was an employee") If a passengers halls of and punches somebody in the mouth, the airline is still liable, but not for battery (because it didn't act through its agent); rather it will be liable for negligence in preventing the passenger-to-passenger battery.



OK.  Got it!


Good team effort right there!  That one took some brain power. ;D
Actually, I think I'm saying something slightly different:
- The common carrier CANNOT be liable for the intentional torts committed by passengers
- The common carrier CAN BE liable through negligence to an injured passenger who has suffered a battery from another passenger

It's a small change from what you're saying. The common carrier is not vicariously liable for the intentional torts. Instead, they're negligent in not preventing the injury from the intentional torts.

Saying that they're liable through vicarious liability for the intentional tort implies that they had some way to control or that there was some relationship with the party who committed the intentional tort, which does not seem to be supported.

And, of course, they remain liable through vicarious liability for intentional torts of their own employees.

Okay, I think we're good for one question, should it appear. That only leaves 199 more, right?

I spent yesterday working on essays. That's a whole 'nother world to look forward to.

Re: Memoirs of a Bar Examinee
« Reply #238 on: June 24, 2007, 07:29:41 AM »
This thread made me think of the chevy chase movie "Memoirs of an Invisible Man." That is all.

Burning Sands, Esq.

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Re: Memoirs of a Bar Examinee
« Reply #239 on: June 25, 2007, 10:48:01 AM »
I think I am seeing what you guys are saying....SMU & Slacker, you guys are saying that the restatement says that a Common Carrier can be liable for the INTENTIONAL torts (such as batter) committed by its passengers BUT it will be held liable for those intentional torts because of their Negligence in preventing the battery, not the battery itself.  So the rule is, just as the answer states in the back of the book, a Common Carrier may be vicariously liable for the intentional torts of its passengers...

A more complete statement of the rule would be "a common carrier may be vicariously liable for the intentional torts of its passengers THROUGH NEGLIGENCE."


The other rule that I have seen is that common carriers may be vicariously liable for intentional torts committed by its employees.  As in, the airline could be sued for straight up battery if an employee halled off and punched somebody in the mouth.  (Thus, the answer (C) uses the words "not prevail, unless guy was an employee") If a passengers halls of and punches somebody in the mouth, the airline is still liable, but not for battery (because it didn't act through its agent); rather it will be liable for negligence in preventing the passenger-to-passenger battery.



OK.  Got it!


Good team effort right there!  That one took some brain power. ;D
Actually, I think I'm saying something slightly different:
- The common carrier CANNOT be liable for the intentional torts committed by passengers
- The common carrier CAN BE liable through negligence to an injured passenger who has suffered a battery from another passenger

It's a small change from what you're saying. The common carrier is not vicariously liable for the intentional torts. Instead, they're negligent in not preventing the injury from the intentional torts.



No we're saying the exact same thing.  In total agreement.  Liable through negligence for failing to prevent foreseeable  battery from one passenger to another passenger.

One down, 199 more to go.



What do you guys need (raw score-wise) in your respective states in order to pass?

In New York you would need the following minimum scores:

120 Raw Score on MBE, combined with
6 out of 10 on all essays, combined with
6 out of 10 on MPT, combined with
27 out of 50 New York Multiple Choice (yes we have our own state specific multiple choice...how brilliant)



EDIT:  Change that to about 6.5 on all essays and 6.5 on the MPT.