Questions and Problems Day 11
1. FOCUSON: Introduction, Butterfield, Schwartz excerpt, Gyerman & n. 1, n.5, LeRoy Fibre & n. following, Derheim & nn. 1-2, Fuller & RST §§ 479-80
2. We will begin with a brief review of negligence. Be prepared to analyze the following fact patterns;consider for each if this will go to jury or if it is appropriate for the court to grant sj for P or D; if it does go to the jury what instructions should be given on the issue of negligence/ breach of duty?
a. D has a cistern to collect water on his land, filled with water (assume for now as in Vaughan v Menlove a landowner has a duty to take reasonable care not to harm his neighbors); cistern cracks and water pours out, flooding neighbor’s house: claim? result?
b. any diff analysis if I tell you region is very dry; both are farmers who need water for farm animals; and to check for cracks one needs to drain cistern, which is expensive (including cost of buying water temporarily); that such cracks are rarre?]
c. any diff if is evidence that is extremely unusual for property owners in region to empty their cisterns to check for cracks?
d. any diff. if is a statute requiring cistern owners to check for cracks at least once every three years?
e. any diff if i) after flood, cistern has been so smashed up that can’t tell if were any cracks in it before the flooding and ii) in last two decades only other cisterns that broke were each shown to have had clearly visible cracks?
3. what is the effect? the purpose? of the classic contributory negligence rule?
4. what is the effect? the purpose? of the last clear chance doctrine
5. apart from its conclusion, I suggest you read the Derheim opinion carefully as an example of the process of common law reasoning.
Questions and Problems day 12
1. You may skip 372-3 nn. 6-7.
2. Imagine a world in which the decision in Murphy is the same but the plaintiff in Lamson is permitted to go to the jury. Can you define and defend a rule that would lead to those results?
3. Joe is in the stadium watching a Marlins game and is hit by a line drive and injured. What (plausible) facts might matter in deciding if the Marlins are entitled to summary judgment on an assumption of risk defense.
4. Look closely at the excerpt from Meistrich @ 371, We will use this as the springboard to explicate what I believe is the most plausible distinction between primary and secondary a/r.
5. Are there any limits on the ability of persons to contract explicitly that one of them will assume the risk of the other’s future negligence? Should there be? If so, what might these limits be?.
6. At the end of the assumption of risk materials we will consider the following hypotheticals. For each, be ready to discuss if there is a defense of contributory negligence and/or assumption of the risk. What more might you need to know to decide if sucyh a defense would be successful? Would your answer be different if the plaintiff were a young child?
1. The plaintiff reaches down to pet a dog that is leashed to a parking meter outside a store (while the owner is inside shopping. The dog appears to be friendly but when the plaintiff touches the dog, the dog bites the plaintiff.
2. The plaintiff is at a "separately enclosed, separate entrance fee portion of the city zoo, which is labeled "The Petting Zoo." Young children are invited to enter and see the ducks, rabbits, goats, and sheep. A sign says, "Feel free to come pet the ducks and the rabbits." The plaintiff walks up to a goat that is tethered in an enclosure with an 18" high picket fence. When his hand is a few inches away from the goat’s muzzle, the goat bites him.
3. Plaintiff and her family are camping in a campground. As she walks towards the bathroom area at the edge of the campground, humming and daydreaming about her great vacation, a sick raccoon, frothing at the mouth, comes bounding toward her and, before she notices him, the raccoon bites her. There is a notice on the form that each camper-group receives when they enter the campground and pay their fee, that says, "Be careful. Wild animals are part of what you are here to enjoy, but can be unpredictable. It is especially important that you do not feed the animals." The plaintiff herself did not read the form, though other members of her family did.
The campground management was aware that there were reports of sick raccoons in the county and that sick animals are more likely to attack humans.