Torts Evening - Fall 2007
Professor Ralph Brill
Exams
Exams

 

EXAM REVIEW
TORTS 94-95
PROF. BRILL

Please(1)read the first question on the exam; (2) your answer to the question; (3) my analysis below; and (4) reread your answer. Then do the same for the other questions and answers. I shall then talk about some of the same issues and answer questions, if any. At the end of the class, please return your blue book to me; you may keep the analysis sheet and questions.


QUESTION ONE:


First, please read the question itself. It asks about the granting of summary judgment to plaintiff's complaint against Turner and Imperial for Negligence. That means the court would have to find that reasonable minds, construing the evidence most favorably to plaintiff, would have to find that plaintiff had not properly alleged facts which could lead a jury to find negligence on their parts, or had shown, as a matter of law, some defense to the action. Since it specifically says P has brought an action for Negligence, and Ds are attacking the validity of that action, you should not have been discussing Strict Liability for Abnormally Dangerous Activities or any intentional torts....just negligence and possible defenses to negligence. If there is a question of fact remaining, than the summary judgment should be denied. If it is clear that there was no negligence, because, for example, there was no duty or a limited duty owed to P and no evidence it was breached, then the SJ should be granted.


As to Defendant Turner, the first thing to establish was the status of P on the premises of Turner Mfg. To receive the full credit of 8 points, one would have had to define invitees and licensees, discuss the corresponding duties owed by owners or occupiers of land to each, for both conditions on the land and activities, discuss the analogous Fireman's rule which many states use to make public employees licensees, discuss the trend to abolish the categories, and then decide which category P fell within. Assuming he was an invitee, the Def. owed him a duty to use reasonable care in inspecting the property to find and fix or at least warn of dangerous conditions and ordinary care in activities on the land. It should be emphasized that where the defendant is an owner or occupier of land and the plaintiff is an invitee or licensee, there is no need to discuss the Cardozo and Andrews' views of duty; the law supplies the duty to the plaintiff once his/her status is determined. [Incidentally, in spite of spelling drill, approximately 40% spelled Justice Cardozo's name wrong].


[The most common difficulties here were (1) merely stating legal conclusions.....stating P was an invitee without explaining why, or why he wasn't a licensee; (2) failing to adequately define the duty owed to either classification, especially as far as activities....most students didn't even mention the difference in standards as to conditions and activities; (3) failure to address the analogous Fireman's Rule; (4) failure to discuss the trend to abolish the difference in the categories; and (5) after starting with P being a licensee or invitee, going to the foreseeable plaintiff or duty to society analysis.]


Once the duty was properly defined, one would have to see if there was evidence tending to show that it was breached. Certainly, the employee was careless in bumping the cover and knocking it from the chains while changing the bulb (an activity), and the employer is liable for negligence of its employee within the scope of employment. Perhaps the defendant could have placed barriers in front of the cauldrons without much burden, since it was foreseeable that the covers or other objects could be dropped into the extremely hot liquid and spill over the very low sides of the cauldrons. (ordinary reasonable conduct to prevent harm from an activity, or at least to serve as a warning of a dangerous condition). Other signs or an oral warning might have been given. Perhaps, one could resort to Res Ipsa Loquitur to produce an inference of negligence (in most states), since covers don't normally fall so easily from chains unless someone has been careless, defendant had exclusive control over the chains and cover and cauldrons, and plaintiff didn't cause the injury. On the other hand, Turner would argue it was relying on custom and usage and the advice of the manufacturer and acting reasonably in using the covers without any testing on its part, and that the burdens of doing any further testing would be greater than the risk of harm.


[The most common problems here were (1) failing to pinpoint what acts defendant could have taken to prevent harm; (2) failure to be consistent.....talking about a duty to give warning of danger in the duty discussion and then talking about it being breached by the employee bumping into the chains in the breach analysis; (3) not understanding res ipsa loquitur]


The discussion of Turner's possible negligence (duty and breach) was worth a possible 8 points.


Then, assuming one or more of the above acts could be found to be negligent, one had to discuss proximate cause. First, one would have to discuss which view of cause in fact would be applied: either but for or substantial factor. [Some came up with some very strange rules, including concurrent causes, enterprise liability, etc.] Since it was alleged that the negligence of two defendants combined to cause the injury, the proper test was probably the substantial factor test; but in any case, even the but for test is established against Turner. If it hadn't failed to place barriers, or if the employee had used due care in handling the chains, etc., the resulting injury would not have occurred.


There are two views of legal cause. But neither of them stem from Justice Cardozo's view in Palsgraff!, as a fair number of students stated. He discussed Duty---not proximate cause. The foreseeable consequences test would require that the defendant be able to foresee the Kind of injury suffered by Plaintiff from its negligent act or condition....although the manner nor extent of the injuries need to be foreseen. Here, the foreseeable result of negligently bumping the chain would be to knock the cover or chains into the cauldron and cause splashing of the extremely hot liquid on those nearby, or the failure to block off the cauldrons would result in objects dropped into the cauldron splashing those nearby; that's exactly what happened, although not in the manner that was foreseeable. The consequence/manner distinction was a key point here.


The direct consequences test requires that the negligent act proceed to cause the injury in a traceable direct chain, without unforeseeable intervening causes, and cause injury not too distant in time and space. Here, the result was direct, although delayed by four minutes.


[Most common problems: (1) mixing up Cardozo's view of duty with foreseeable consequences view of legal cause; (2) mixing up cause in fact with direct consequences view of legal cause; (3) failing to grasp the manner/consequence distinction; (4) surprisingly, failing to discuss legal cause at all.]


Proximate cause was worth a maximum of 8 points.


Was Imperial negligent? Remember, you were not to discuss strict liability in tort, either for abnormally dangerous acts or for products liability. Here, one would have to examine the two views of duty....Cardozo's foreseeable plaintiff view and Andrews' view of a possible duty to society. One would have to weigh the foreseeability of harm, the gravity of harm, against the burdens of taking additional precautions. Was it foreseeable to a reasonable manufacturer that if it failed to test the covers for potential chemical reaction an explosion might occur, injuring anyone standing nearby (including someone like the plaintiff?) It would argue it acted reasonably in relying on over 20 years of experience and industry wide custom and usage, which ordinarily is a strong factor in deciding if one is acting reasonably or not. However, custom and usage are not conclusive; and a court may find a whole industry has acted carelessly. No one ever tested the covers, yet it was foreseeable they would come into contact with very hot liquids. Wouldn't a reasonable person try to determine the effect of such contact? It can be argued that the failure to test, at all, is unreasonable conduct and created a foreseeable risk of harm to workers and others in the factories using the covers. What would be the burdens, financial, physical or societal, in conducting such a test in light of the fact that no similar occurrence had been reported in all those years?


Cause in fact and legal cause would then easily be established; negligence by the factory workers or company would not be a superseding [note spelling] cause.


[Most common problems: (1) leaving out any separate discussion or any discussion at all about Imperial; (2) not discussing foreseeability of harm to plaintiff or others; (3) defining Andrews' view as a duty to society arising if anyone is injured....it doesn't work that way...it arises if one can foresee injury to anyone, and in light of the burdens of preventing the injury, a reasonable person would take specific steps to avoid it. It's not a hindsight test...if one is injured there was a duty not to injure her/him; it had to at least be foreseeable that someone would be injured.]


Imperial's possible negligence was worth 8 points.


If both are negligent and the proximate cause of the injury, they become jointly and severally liable, with some description of what that means then required. But there are potential defenses, including contributory negligence by plaintiff in moving to the cauldron and peering in, or assumption of risk, in entering a dangerous factory and moving towards the allegedly known risk of the hot liquid. On the other hand, he was there to inspect dangerous conditions, and the danger of splashing appeared to him, reasonably, to be over once the cover sank; he could not foresee or know that the explosion would occur.


The discussion of A/R, C/N and Jt and Sev. together added up to a maximum of 8 points.


I think the average number of points given on this question was about 18 out of 40.


Question II (A). Evening Division Question.


The issues here included the possibility of an assault by Plaintiff on the two defendants (probably not), possible assaults by Defendants on Plaintiff, possible batteries by both defendants on Plaintiff, false imprisonment by Darwin, an alleged privilege of self-defense by Tallinger, an alleged privilege of defense of others (and possibly self-defense) by Darwin, a consideration of the effect of the defendants' ages on liability, and an analysis of whether there could be joint and several liability for acting in concert.


First, did Plaintiff commit an Assault upon the two potential defendants by yelling at them, advancing towards them, accusing them of beating his friend, when he was older and bigger than they were? One would need to accurately define Assault, which is something like intentionally causing, by an overt act directed at the victim, a reasonable belief that the actor was about to inflict a battery, coupled with an apparent present ability to carry it out, without consent or other privilege. Mere words, no matter how violent, cannot constitute an Assault; there must be an overt act directed at the victim which creates a reasonable apprehension of an imminent battery. While the size and age of the apparent assailant may be taken into consideration in judging whether the victim could reasonably believe he/she was about to be struck, here, merely starting towards the two boys, without any further physical act, even though he was shouting at them, would not lead them, yet, to reasonably believe they were about to be hit.


Next, Parker claims that Tallinger hit him with a judo blow and knocked him to the ground. If Parker saw the blow coming, he obviously suffered an Assault (unless it was privileged) since there was an overt act directed at him which created a reasonable belief he was about to be struck. When Darwin hit Parker with a brick, he hit him from the rear, so it does not seem there was an Assault at that time, since Parker would not have seen the blow coming.


The discussion of all these possible assaults was worth a total of 4 points.


Next, the judo blow would clearly be a battery, if unprivileged. Tallinger would have intentionally (acted for the purpose of) caused a harmful or offensive contact with Parker's person. Similarly, Darwin would have committed at least one battery by striking Parker with the brick, and probably another when he shoved Parker into the shed.


The discussion of these possible batteries was worth a total of 4 points.


Darwin also committed a false imprisonment by placing Parker in the shed. He intentionally (acted for the purpose of) caused P's total confinement within boundaries (in this case, physical) established by D, with no reasonable means of escape. While P may not have known about his confinement at the time, he surely realized it when his dazed condition was relieved. Furthermore, even if the original imprisonment could somehow be privileged, D committed a further false imprisonment when he failed to release P. While normally, there is no affirmative duty to act to help others in distress, there is an exception where it is the defendant's act, even innocent in character, that placed P in the position of peril.


The discussion of false imprisonment was worth 3 points.


Tallinger would argue he was justified in inflicting the judo blow to Parker because he reasonably feared he was about to be attacked, and would therefore be entitled to use self-defense measures. As stated above, Parker probably did not yet commit an Assault merely by shouting and starting towards the two boys. Of course, a court could find that Tallinger reasonably believed that because of his size and demeanor, Tallinger was about to attack him and he preemptively used the judo blow to prevent harm to himself. A person is allowed to use reasonable force when and to the extent he/she reasonably believes it necessary to prevent the other's use of similar force to him/her. There also is a question of whether a judo blow would be reasonable force under the circumstances. If one uses excessive force, the privilege, otherwise present, would be lost, and the defender is treated as the aggressor and loses any privilege. If the defense is otherwise present here, Tallinger didn't have to retreat; he would have been entitled to stand his ground.

Darwin would claim defense of others. There are two views on this defense. One is entitled to use reasonable force when and to the extent one reasonably believes that another person is threatened with similar force by the one struck. Under one view, the defender steps into the shoes of the person being aided, and if that person would not have been entitled to defend him/herself, the defender is not either, no matter how reasonable the mistake may be. So, under this view, if Tallinger was not entitled to defend himself, because there was no reasonable threat of violence by Parker, or because Tallinger used excessive force in defending himself by the judo blow, Darwin likewise would not be privileged. The other view says that the defender is allowed to act upon what reasonably appears to him/her at the time; a reasonable mistake of fact will not negate the privilege, even if the defender aids the wrong party. Under this view, in the dark, with what appeared to be a knife, Darwin would be entitled to use reasonable (perhaps even deadly) force to protect Tallinger.


Tallinger's use of self-defense was worth 3 points, Darwin's use of defense of others was worth 3 points and the discussion of excessive force was worth 3 points.


Finally, extra credit of up to 2 points was awarded for talking about the effect of the D's age, as minors, and whether that would affect their liability for intentional torts, and another possible 2 points was awarded for discussing whether the Ds were acting in concert and could, if unprivileged, be held jointly and severally liable. On the other hand, some students attempted an analysis of Intentional Infliction of Emotional Distress, a perfectly viable theory here. However, I had instructed both classes that I would not test on this subject on the exam since I did not cover it in class (because it was the subject of a Legal Writing assignment). I was in a quandary -- I couldn't very well give credit to those who argued for the possibility of such an action since that would be unfair to those who didn't do so because of my instructions. On the other hand, those who did attempt to analyze IIED spent valuable time they could have spent on more relevant topics. In the end, I chose not to even read the stuff on IIED since my instructions about it and products liability had been explicit, but I felt badly.


Question II B. (Day Division Students)


This question proved to be exceptionally bothersome to most students in the class. It was taken from another casebook as a discussion problem on Battery.

Battery was the first possible tort. The definition of Battery we used in class (but some seemed to abandon for the test in favor of something obviously taken from a commercial outline) was Intentionally causing harmful or offensive contact to P's person (or an extension of the person) without consent or other privilege. The definition of Intentionally, remember, is either acting for the purpose of causing the needed contact, or acting with knowledge to a substantial certainty that the contact would occur. Here, surely D admits that it was her purpose to cause P's death by a plane crash in repeatedly sending him in to the terrorist area....she hoped and prayed he would be shot down. So, arguably the Intent was present, and surely there was harmful contact....the crash, causing his death. [A discussion of Battery, Intent, Act, Harmful Contact, etc. was worth 4 points]


The key issue was causation.


Here one had to use analogy and other things learned in the course. Is the definition of Causing for battery the overall Cause in fact definition of Negligence law .... but for???? or does it encompass the concept of legal cause??? Here, if but for is the test, it could be argued that but for D sending him on the trip he would not have been attacked by the terrorists and killed. But if the test encompasses legal cause, did D cause the terrorists to attack? And doesn't the intervening criminal act of another normally supersede the D's responsibility? But it could be argued that the test is foreseeability, in which case it surely was. I frankly didn't care what answer people arrived at, so long as they saw the somewhat subtle issues. [A discussion of causation and proximate causation was worth 4 points]

If there was no intentional tort of battery, arguably D could be liable for Recklessness (Wilful and Wanton conduct), or perhaps ordinary negligence. Recklessness requires a showing that the D could foresee from her acts (sending him on the trips) the high probability of harm (from terrorist activity) and a conscious disregard of the consequences. Surely, it was foreseeable to D that there was a good possibility of the kind of harm suffered; the question would be whether it was a high probability or not. There had been a few incidents, but not every plane was attacked, so it could be argued by D that it was only a reasonable possibility, not probability. The conscious disregard portion of the definition would be met. But if one concluded there was not a high probability, it at least was a reasonably foreseeable consequence; and the gravity of the foreseeable injury was tremendous. No great burden, physical, financial or societal, would have been imposed on D, since the trips were not warranted by business anyhow, and were only personally motivated. Thus, duty and breach would be easily established. Then, whether one found recklessness or negligence, one would have to find the causation in fact and legal causation issues above satisfied. [Recklessness/Negligence was worth a total of 5 points]

One possible defense was the Statute of Limitations. P's death was two and one-half years ago. Statutes of limitations ordinarily run from the time the cause of action "accrues" and for most torts are one or two years. Here, accrual would be at the time all the elements were satisfied, which would be when P died. However, most states have interpreted their S/Ls to be qualified by the "discovery" rule, and hold that accrual doesn't occur until the P discovered the cause of action, or reasonably should have. Here, until D's letter, his widow had no knowledge that D had done anything to help cause P's death, so it could be argued that the action did not accrue until the letter was received. [The Statue of Limitations received a maximum of 5 points]

Then, I awarded another 2 points for other reasonable or even unreasonable arguments, including negligent infliction of emotional distress to the widow by sending the letter, or hearing about her husband's death.


Question III


As the instructions stressed, one needed to organize this answer to do really well, and there were a number of possible logical organizational frameworks. However, many people did not seem to strive to do this, so that they may have started out talking about one particular person's potential liability, but switched in the middle of that analysis to another person's liability, or some defense available against one of the potential plaintiffs, or some other intrusion on logical organization.

First, Drew and the County's potential liability.

One easy answer would be that at common law, the County would be immune from tort liability, with an explanation of why, then a discussion of the distinctions some courts applied between proprietary and governmental functions, the trend, now almost universal, to abolish governmental immunity, but the trend now for legislatures to at least partially restore it. (We didn't really discuss the nuances of this, but the County's immunity, at common law, and under most statutes, doesn't necessarily extend to the employee himself). [A discussion of Immunity was worth a total of 3 points]

Assuming immunity could be overcome, was the County, acting through its employee Drew, negligent in transporting the machinery? (incidentally, if the County were held liable, it doesn't relieve the employee of liability, as several students claimed). How do we decide if one is negligent? We first act what was foreseeable, as a reasonable possibility, from the allegedly negligent act? What is foreseeable from operating this transport, with the machinery extending 2 to 6 inches into the oncoming lane of traffic? What would be the gravity if the event occurred? Then what burden would there be on the defendant to take precautions to prevent this from happening? Could the defendant have done more than it did? What would a reasonable prudent person in these circumstances have done?

The problem here is most people simply said D did all these things and therefore was acting carefully. Surely, it was foreseeable that an oncoming vehicle would strike the protruding machinery. Was what Drew did sufficient to prevent that? While I didn't care what conclusion you reached, it was important to review carefully the things done and not done, and not simply conclude yes or no. For example, the flashing light might alert oncoming traffic that there was some problem with the vehicle and cause it to slow down, but wouldn't by itself alert the oncoming traffic that the load might protrude into the other lane. The reflectors wouldn't help very much at dusk, especially from the front, where oncoming traffic was. The sign "Danger-Very Wide Load" might not be easily seen by oncoming traffic, coming over a hill, even at speeds within the speed laws; even if it could be seen, would it necessarily tell the oncoming driver that the load was wide enough that it might be intruding into the oncoming driver's lane? What else could Drew/The County have done? As some pointed out, they could have had a lead car giving much more warning, and cautioning oncoming vehicles to move as far to the right as they could. Possibly, a revolving light could have been placed at the extreme outside of the earthmover, so the oncoming cars could see it in their lane. Etc. [The issue of Drew/the County's potential negligence was worth 5 points]

Ms Norman arguably was contributorily negligent by speeding. At common law, this would have been a complete bar to recovery against Drew/the County. Arguably, Ms. Norman's contributory negligence (and affirmative negligence towards the other injured victims) was due to Violation of Statute, the speed laws, which she exceeded by 20 miles per hour. Most states find violation of a safety statute, designed to protect the injured victims as a class against the kind of hazard suffered, to be negligence per se, i.e., to establish that defendant owed the victims a duty which it breached. Others treat violation as a presumption of negligence, or, as in Illinois, evidence of negligence, i.e., evidence of what the standard of care should have been and that it was breached. There is little question that Norman was negligent under any of these views. The purpose of the statute was safety, it was designed to protect other drivers on the road and possibly others off the road from collisions caused by excessive speed. The problem, missed by most students, was whether the negligence --- speeding -- was a proximate cause of Norman's injuries. Can it be said that "but for" the speeding, Norman would not have collided with the road grader? Or if one takes the view that because there allegedly are multiple causes involved, was Norman's speed a substantial factor in causing the collision???? Another way of putting this is would the collision have likely occurred even if Norman was travelling at 55 m.p.h. when she reached the downside of the hill?

Some argued that had she been travelling at the proper speed she may have been better able to see the warning sign and read it, and move over to the right side of the road to avoid the collision. Some argued she may have been able to slow or stop her car if travelling at the speed limit, but was unable to do so because she was speeding. Those are good arguments. But unless you tried to make something like those arguments, merely saying that speeding was a cause in fact of the collision was not good. [A full discussion of violation of statute as contributory and affirmative negligence, and the proximate cause of the collision was worth a possible 5 points].

Both for Drew and for Norman there then were the questions of possible liability to Able/Chumley, Leona Leonard and her parents. For Norman, if one were relying on the Violation of Statute, one would have to decide whether these people were within the class of people the speed laws were designed to protect. Were they???

For Drew, this called for an analysis (1) of the two view of duty....Cardozo's (note the proper spelling) and Andrews' views of duty from Palsgraff; and (2) the two major views of legal cause....foreseeable consequences and direct consequences. Cardozo would require that D be able to foresee, as a reasonable possibility, some injury to a specific victim...here, Able/Chumley, Leona and her parents, though not the manner of the injury. Able/Chumley, another user of the highway would be pretty easily foreseeable to Drew. The question would be whether Leona, a mile and forty minutes away, was a foreseeable victim of a collision on the highway, and likewise whether her parents, even further away could be threatened with any kind of harm. Neither Norman nor Drew knew there was a toxic chemical truck nearby, so that couldn't heighten their knowledge of the possibility of the event that actually occurred. Under Andrews' view, however, since Drew's act, if negligent, foreseeably could have injured Norman and Able/Chumley, and the burden of preventing these injuries did not outweigh the possibility, there would have been a duty to society not to do the act in the manner he did....(of course, one could find the burden did outweigh the foreseeable risk of harm, in which case there would be no negligence to anyone). [This view is not, as many said, that there is a duty to anyone injured....one must first find that injury to someone is foreseeable and the other factors (gravity/burden/reasonable person standard) result in a duty to that person, which then translates to a duty to society. [A discussion of the two views of duty to the various people was worth 5 points]

Then, there would be an explanation of the two views of legal cause. Under the foreseeable consequences test, one would reach a result quite similar to the analysis of Cardozo's under duty, but not necessarily. Once again, injuries to Norman and Able/Chumley of the kind suffered were reasonably foreseeable. But without foreseeability of the intervention of the toxic chemicals, could Drew (or Norman) reasonably have foreseen the kind of injury Leona or her parents suffered? Under direct consequences, things could be traced in a chain of events, foreseeable from one step to the next. But there are important factors of time and space. Leona's injuries occurred nearly an hour later, one mile away. And the parent's injuries were suffered much later, and even further away. A court could find they were too remote from the negligence of not warning oncoming drivers of an extra wide load, or from the negligence per se of speeding. (Incidentally, Norman's act is not a superseding cause if Drew is negligent; it probably is a concurring act of negligence, producing a single indivisible injury to Able and possibly the others)[The proximate cause discussion was worth 5 points]

Able/Chumley didn't seem to do anything negligently. 200 yards is a pretty safe distance behind the wide load truck, even for one carrying toxic materials. However, it might be argued that they were engaged in an abnormally dangerous or ultrahazardous activity, which should lead to strict liability in tort (liability without fault). This involved discussion of the factors which go into the determination of what constitutes ultrahazardous activity, as well as proximate cause liability to Leona and her parents. Some even argued, logically, that Drew/the County also were engaged in an ultrahazardous/abnormally dangerous activity and should have been strictly liable. [Strict liability discussion = 5 points]

Leona's parents suffered loss of their crops, which I described as "economic loss". Of course, my description should not be determinative of the legal issue....were their injuries pure economic loss, which is not recoverable in tort? Or were they merely property damages...the destruction of their property...which is fully recoverable? [economic loss analysis = 3 points]

Finally, the discussion of contributory negligence/comparative fault, and joint and several liability of the various parties, plus any other relevant arguments, was worth an additional 4 points.


General Comments On Exam Taking


Please re-read the instructions on the exam.


First, there were far too many of you who did not follow even the procedural instructions on the exam. You were to begin the answer to each question on a separate page; I would estimate that twenty people violated this instruction. You were to answer the questions in the blue book (or on the computer) in the order they were given (you could have answered them in a different order, but saving space in the blue books for them to appear to me to have been answered in order). There were quite a few violations of this instruction. The instructions said to take only one extra blue book for scratch, unless you used that one up, when you could have another. At least thirty people had two, three or four empty blue books turned in with their answer. As I explained on the instructions, this increases the chances of losing a blue book or portion of one; it simply is unnecessary.

Then there were the substantive instructions. On the first question, you were told to discuss a motion for summary judgment on Negligence actions filed against two defendants. The question even said don't discuss privity or products liability concepts; confine your discussion to relevant concepts of negligence. Yet many students spent time discussing a possible action based on strict liability (for ultrahazardous activity), and a couple even (incorrectly) said P could have sued for several intentional torts. Many said P may possibly bring in evidence of x or y.....but right now, we have to decide whether the summary judgment should be granted or not, not what will happen later if it is denied. And when a question says "evaluate any actions available" it doesn't mean you just list the possible actions.....you have to discuss how viable the action might be....what element or elements would be missing or arguably missing or difficult to show, or what defenses might reasonably be asserted, and how likely are they to be successful? You must read and answer the question(s) asked, not some other questions.

I hope that this review will prove helpful to you on future exams in other courses. Good luck.

Remember also what I told you in class. One of the most important things you are being tested on is your ability to analyze the facts to determine the issues raised by the facts.

Did you clearly identify each issue before you discussed it? Did you, for example, after stating a definition of duty or battery or whatever, then say, "the first issue is whether ...." (for example, in the last question, "whether Norman's negligent speeding proximately caused the collision with the road grader".) Did you have a lot of zeros listed at the end, meaning you missed a bunch of issues completely?

The second thing you are tested on is your understanding of the fundamental principles of law applicable. Did you fully discuss the rules or doctrine? Did you define licensees and invitees and the difference it would make in the outcome if Plaintiff were one or the other...i.e., what the duties are to each? Did you elaborate on this, with trends, or analogies to other rules, like the fireman's rule, or assumption of risk doctrine? If an issue was worth 5 points and you only got 3, one likely explanation was that you didn't fully explain the doctrine and its exceptions, trends, etc. (the other is that you didn't apply it very well).

The third thing tested was your ability to reason...to apply the principles to the facts to reach a logical conclusion. Did you show the application, or did you merely state a legal conclusion? Did you say "under this definition, P was an invitee"? or "P was an invitee because his visit bestowed an economic benefit." or did you go on to show what that economic benefit was or might be? In the last question, did you merely say "Drew acted reasonably in carrying the road grader", or did you say "To expect Drew to do more than the various things he did to warn oncoming traffic would be too great an economic and societal burden"? or did you go on to explain why it would be too great an economic or societal burden? The last in each of these sets is better than the others, and the second in each is much better than the first.

I glanced at a significant sample of Scratch booklets, to see how many of you outlined in advance your answers. Relatively few had any kind of detailed outlines.

My suggestion to you now is to rewrite all or at least one of the questions and answers, taking as much time as you need to do it as perfectly as you can. You now will have a model of what you should be striving for on future exams.