Wednesday, February 27, 2008

MBE Tip #1: Blowing Something Up is Not Arson

Unless, of course, it starts a fire (I think).

Hey! I'm watching channel 5 this morning and they're doing a local interview with some of the Laker Girls. The topic is health in general, and high blood pressure specifically. Personally, my blood pressure goes up just a little when the Laker Girls are on TV, but that's just me. (;-)>

Anyway... one of the Laker Girls said that french fries and beer is not a "good lunch". Hmph. I guess that explains why I tend to need a nap in the afternoon. I wonder if I should replace the beer with vodka-tonic? Maybe just for the Bar, eh? (;-)>

Have a GREAT DAY!

23 comments:

Anonymous said...

TOPIC: Res Ipsa Loquitur/Negligence

CASE: Larson v St. Francis Hotel, 83 Cal. App. 2d 210; Court of Appeal of California, First Appellate District, Division One [1948]

FACTS: On V-J Day, August 14, 1945, many San Franciscans were celebrating and acting exuberantly. On that day, plaintiff stepped out from defendant hotel’s marquee and was knocked unconscious, sustaining injuries when a heavy stuffed armchair fell from the sky. Although there were several individuals in the immediate area, no witnesses saw where the chair came from, nor was there any identification showing the chair as belonging to the hotel. The trial court, however, felt that it could be reasonably inferred that the chair came from the hotel.

Plaintiff sued for damages under the doctrine of res ipsa loquitur.

HISTORY: The Superior Court of the City andCounty of San Francisco (California) granted defendant’s motion of nonsuit, stating that the doctrine of res ipsa loquitur did not apply. Plaintiff appealed.

ISSUE: Under the circumstances as shown, does the doctrine of res ipsa loquitur apply?

RULING: No. The Court of Appeal of California affirmed the judgment of nonsuit.

RULE/ANALYSIS: In order for a plaintiff to prove res ipsa loquitur, she must prove three elements: (1) there was an accident; (2) the thing or instrumentality which caused the accident was under the exclusive control and management of the defendant; and (3) the accident was such that in the ordinary course of events, the defendant using ordinary care, the accident would not have happened. In this case, two of the three elements were found to be lacking.

SUMMARY: The court of appeals felt that a hotel does not have exclusive control over its furniture and that its guests have, at least, partial control. More than likely, the chair would still have been thrown out the window [this fact is reasonably assumed, even though there were no witnesses to this event] even with the hotel using ordinary care. It would be impractical to expect a hotel to keep guests and visitors from “misbehaving” – it would almost require a guard to be placed in every room. Therefore, since two of the three elements are not present in this case, the doctrine of res ipsa loquitur does not apply and the court of appeals affirmed the judgment of nonsuit.

The Grand Poobah said...

Yeah, it's nice when they reproduce a fact pattern drawn almost verbatim from a case.

Although I think the one with Summers v. Tice as an actual answer choice was odd.

Anonymous said...

GP - good luck on day 3. I just finished the AZ bar exam. Um, I don't feel horrible, but that's not to say I feel good.

Thanks for your blog throughout - I wish you well!

Anonymous said...

Did anyone else feel as bad and discouraged about those stupid MBEs...I did about 2000 in practice and felt like I have no idea how that went....words of comfort please anyone!??!

Anonymous said...

GP,

Remember these sage words of advice when you start the PT tomorrow.

"Everyone else is tired. Now is the time to make your move."

It always comes down to the last PT.

Go get em!

Anonymous said...

Yeha the summers v tic was obviously not right (joint enterprise theory would be the correct answer.)

Two hillbilles deciding to fire their guns at a pole. One of them is going to hit someone, doesnt matter who..

I'd guess that would be one of the 10 experimental

Anonymous said...

Help! Is it normal to feel crappy after the mbes???

RG said...

I think I saw you today! Were you wearing light denim shorts with some camoflouge action T shirt?
( spelling, sorry) At least I think it was you, but I didn't want to go and harass the possible Grand Poobah impostor! ;) RG

You can do this! Good luck!

The Grand Poobah said...

It's normal to feel crappy after every part of this thing. That's their intent. They make us use all of our skills to get through these three days, including our coping skills. It's kind of like boot camp. They tear us down before we get to build ourselves back up.

Half of the challenge is applying what we've learned. The other half is coping with the stress.

After the MBE's, people either feel ambivalent, or they feel crappy. I don't think anyone ever feels good. So you're right there with the rest of us.

The Grand Poobah said...

RG: Yeah, that was me in my deep sea, off shore fishing, good luck shirt. Tomorrow I'll be wearing my Tiger Woods Lucky Red Winning Time shirt!

Paul said...

Ok guys - I am glad to see someone out there is feeling the pain too. I just took the MBE up here in AK and feel hurt. I have been an attorney for 6 years and feel like I am pretty well respected among peers, but that was just demoralizing - think I blocked it out from my first bar.

I put joint tortfeasor for the hill billies too, but can't remember what I said for the chair being thrown out the window. What about the full faith and credit for punitives - anyone know the answer for sure? Hell, I researched it and still am not sure.

One more day up here as well -let's pray for good essays.

Anonymous said...

Ok...freak out girl again :) i found this link from CALBAR website that has made me feel much better....if you scroll down there is the scaled v. curved score for the July 2007 and the internet says that they curve the february much more easier....anyways hope this babble makes sense i'm fried

http://www.calbar.ca.gov/calbar/pdfs/admissions/Unsuccessful_info.pdf

Hope it makes you guys feel better :)

Anonymous said...

I have no clue about the hill billies - what about the damn Wills Q with the stat in it? what did you guys think? - also the crim pro one when the dude went into jail undercover?

Anonymous said...

Re: Question with Summers v. Tice in the answer choice.

Summers v. Tice was an incorrect answer. The fact pattern altered the facts ever-so slightly to take it out of the rule of Summers v. Tice.

Anonymous said...

I took the bar in July 2007 and breezed through the MBE. I took it again yesterday in another state, and I think I may have failed. It was much harder this time.... or maybe that's what I get for being cocky. What IS exoneration?

Anonymous said...

Undercover guy: only 6th amendment applies (5th is compelled incrimination, 6th is right to counsel, not compelled if undercover).

Full faith and credit is given because the question says that a non-indian court adopts the opinion, and then a second state is involved. State Green gets FFC from red.

I was utterly humbled by the p.m. mbe.

Is consent a defense to battery in civil suit in stat rape situation? In CA, Georgia, etc. yes, majority position no, answer majority view?

Intervivos conveyance of fee simple after 3 years valid?

Transporting toxic waste by train, hits car?

Old lady returned from nursing home with broken leg, both liable as best position to have knowledge?

Buyer corrects title defect, answer after-acquired or because whole was conveyed? (My law school and books ONLY call it estoppel by deed, net says some jurisdictions call it after-acquired doctrine... so I picked statement of fact over after-acquired.)

Officer searches car and purse on anon tip, purse ok? (ok if probable cause, was it?)

Suppression hearing invokes 5th for source of drugs and something else, which of two proper? All I could recall is Simmons says can't use testimony at trial.

I blew the reverse batson. Thought it only applied to civil cases but apparently even though no S. Ct. case, it applies to criminal also. I knew better from crim pro II though, stupid mistake.

Anonymous said...

What IS exoneration?

No clue. Any answer with exoneration I crossed out as a red herring :).

Anonymous said...

>> Re: Transporting toxic waste by train, hits car?

The question asked if STRICT liability should be applied. Transporting toxic waste is abnormally dangerous. But that's not what caused the Plaintiff's death. So no strict liability.

>> Re: Old lady returned from nursing home with broken leg, both liable as best position to have knowledge?

Yes. This is the rule of Summers v. Tice (which showed up as an answer in a later question in the P.M. section).

>> Re: Buyer corrects title defect, answer after-acquired or because whole was conveyed?

Yeah. We also called this estoppel-by-deed. I've never heard it called after-acquired title. But it was the only answer that made sense :/

I thought the MBE was awful. Nothing like any of the practice ones I took...

Anonymous said...

"Transporting toxic waste is abnormally dangerous. But that's not what caused the Plaintiff's death. So no strict liability."

See BarBri answer, strict liability applies! Their toxic question is about a truck that crashes into a car and spills no waste. I remembered it clearly while taking the MBE because when I did the BarBri version, I was like wtf. Answer said that the ultrahazardous activity was *transporting* toxic waste, hence strict liability applies. Similarly, storing nerve gas that causes an exothermic reaction neutralizing the gas, child in adjoining subway chamber scrambles away and is hurt (but not by gas) - strict liability.

"Yes. This is the rule of Summers v. Tice"

Nay. Both hunters were negligent in S v. T, it is a basis of the decision. The old lady question contemplates a possible innocent party. I.e., leg broken by transport company on return trip. But apply risk spreading where corporate actors involved.

"Yeah. We also called this estoppel-by-deed. I've never heard it called after-acquired title. But it was the only answer that made sense :/"

No, there was a second choice, a factual choice, that mades sense. But law > fact if you buy the premise that after-acquired refers to estoppel by deed and not a mortgage clause... Horrible horrible wording.

Anonymous said...

"Transporting toxic waste is abnormally dangerous. But that's not what caused the Plaintiff's death. So no strict liability."

All I can do is assert that Bar/Bri is very incorrect (but that wouldn't suprise me). Transporting waste is an ultrahazardous activity because the waste can be released during transport (it comes right out of Rylands v. Fletch and American Cyanamid). "The rule of strict liability is limited to the kind of harm for which the activity was determined to be abnormally dangerous." If there's no release of the train's contents, it's no different than if the train was transporting cuddly teddy bears. The nerve gas question is easily distinguished.

"Nay. Both hunters were negligent in S v. T, it is a basis of the decision. The old lady question contemplates a possible innocent party. I.e., leg broken by transport company on return trip. But apply risk spreading where corporate actors involved."

Exactly. In the problem, either company could have been negligent and nobody knew who. Summers v. Tice also contemplates a possible innocent party. (in S v. T, both hunters fired their weapons; it was unknown whether a bullet from each defendant struck the plaintiff--but both defendants were acting foolish in that case.) The application of S v. T is to shift the burden of proof to the two possible joint tortfeasors.

"No, there was a second choice, a factual choice, that mades sense. But law > fact if you buy the premise that after-acquired refers to estoppel by deed and not a mortgage clause... Horrible horrible wording."

I thought the wording was horrible on a lot of them. That the writers really, really took efforts to twist the wording of the answers to hide the correct choice. Like the one where the mental patient was driving a car and though he was going to be attacked... that one took me a few minutes to parse the four nearly identical answer choices.

Anonymous said...

I think you missed his point. "The general rule is that when two or more defendants are negligent and it cannot be determined as to who caused the injury, it would be unfair to exonerate either from liability." In the MBE problem there was at least a possibility that one party was completely innocent - no bad conduct at all. In that case, S v. Tice is not directly on point.

Traditionally, the rule is applied in accordance with S v. T. Asbestos, multiple makers of DES, etc. In each case, it might not have been them but they were hurting someone.

Not sure what the value of so many strict liability questions is. I chose "whether the cracks were forseeable" for the jack hammer question but almost went for strict liability because I wasn't sure if pile driving was different than jack hammering. Still not completely sure :).

There was also the products liability question concerning manure waste pit. I went for strict liability in design on that one.

Anonymous said...

Wigmore: "When two or more persons by their acts are possibly the sole cause of a harm (or when two or more acts of the same person are possibly the sole cause), and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves."

Monica said...
This comment has been removed by the author.