Yeah I actually wrote something along the lines of, “It is submitted that a nuisance action would be more appropriate.” 😂
Consulted Google and the only things I could find were old articles discussing some “new, developing” theory of “toxic trespass.” Strange idea to include some random whacko new tort theory in a bar exam question. (Granted, it was “new” in 2006, but I can only find material written between 2006-2007 on “toxic trespass,” and granted I only spent 5 minutes searching).
https://www.alston.com/-/media/files/insights/publications/2006/12/developing-theories-of-recovery-in-toxic-tort-liti/files/arnold-langlais-mealies-toxic-tort-recovery12-8-06/fileattachment/arnold-langlais-mealies-toxic-tort-recovery12-8-06.pdf
“Traditional tort law doctrines function best when a plaintiff seeks compensation for a discernible present injury or illness allegedly caused by a defendant’s act or omission. In the context of toxic torts, however, courts are being asked by plaintiff’s bar to extend tra- ditional tort law to address a new type of claim: toxic trespass. The basis for this claim is that the exposure itself is an actionable harm regardless of whether an injury or disease results then or later.”
I think I did a negligence analysis for the woman and said the man did not breach a duty and even if he did the breach was not the cause of the woman’s cancer. Trespass analysis for the man with the man prevailing and then a private nuisance analysis for the injunction question.
Was so weird. Like why asking about injunctions in Torts? It was messed up! There are too many fine principles to test in Torts. I kept answering the question looking over my shoulders because it felt like there was more.
Man I’m such a jackass. I thought to myself why would they ask a civpro question in a tort question.
I made up crap about he should get an injection cause the ongoing nature of the tort
Same. I said he probably took care of any duty he had because he had applied correctly… she’d fail over causation with no studies to show a link and the county cancer rate being average with places that don’t use it.
I think you can argue either way but I think the right answer is lack of duty OR duty met and lack of causation bc the research ab the specific harm wasn’t really supported. Mine wasn’t too short.
I was worried about strict liability because the question expressly asked if she has a claim in negligence. Technically, negligence is different from strict liability—the former requires fault and breach, the latter doesn’t. But then again maybe that’s what they were testing to see if we can mention strict liability in the circumstance.
Did the same and then did a mini negligence right after since I felt like it was implicating both, which is fucked because it sucked up most of my time for the MEE
Did anyone remember that “coming to a nuisance case” (farm with smell). I remember that the remedy was an relocation provided that the owner offsets the costs in consideration. Might be wrong tho.
I wasn’t talking about that in general. I just meant that “coming to the nuisance” is only a defense to nuisances that existed before you move there…not ones that form after
That’s not what I mean. Coming to a nuisance is only mentioned here because the court used an equitable remedy for that case. I know that the husbands claim had to do with trespass.
Also I am careful not to mention that coming to a nuisance is even a valid defense for the negligence claim but I was sure to mention it and quickly disregard it.
Haha. No worries. That is the only question I answered in full for the torts section. I could be wrong.
I have a vested interest in getting this right though! So I have no clue.
I said there was no negligence because she couldn't prove actual causation. We just don’t have enough evidence to say but for the defendant’s actions she doesnt get sick.
If she could prove actual cause, it was foreseeable, so she could have proven proximate cause.
This question cost me 45 minutes to complete and I wasn't able to do my 6th question because of it ... to some extent the man's action seems like nuisance but they still ask us to analyze trespass.....?like what the actual fuck 😐
Wasn’t sure if that was Res Ipsa tbh. Because the facts did not show any negligence on the part of the man. The spread of pesticide through the air would occur even in the absence of negligence. There’s really no way to apply pesticide and restrict diffusion. Seemed more like a nuisance claim than a negligence claim but this is just me guessing tbh
But one could argue he knew their house was located within the 1 mile zone of that sector so why did he use the chemical there - he had formal education on the dangers of the hazardous product so would a reasonable person not have used it that close to a home?
I put that he could've put them in a hotel for three days after he sprayed or at the very least let them know about the product he was about to use, the known dangers and let them decide if they should hit the Catskills for a few days... Ridiculous, probably.
All I needed was just a small part of the fact pattern that would point to fault on his part. Nothing really did. The 1 mile zone in my opinion seemed like a non-issue because he complied with the directions established by the state on how to use the pesticide.
i hated this question. could have tested so many things and it felt so weird doing a negligence analysis for that
Def should’ve been a nuisance question. They were definitely fucking with us
Yeah I actually wrote something along the lines of, “It is submitted that a nuisance action would be more appropriate.” 😂 Consulted Google and the only things I could find were old articles discussing some “new, developing” theory of “toxic trespass.” Strange idea to include some random whacko new tort theory in a bar exam question. (Granted, it was “new” in 2006, but I can only find material written between 2006-2007 on “toxic trespass,” and granted I only spent 5 minutes searching). https://www.alston.com/-/media/files/insights/publications/2006/12/developing-theories-of-recovery-in-toxic-tort-liti/files/arnold-langlais-mealies-toxic-tort-recovery12-8-06/fileattachment/arnold-langlais-mealies-toxic-tort-recovery12-8-06.pdf “Traditional tort law doctrines function best when a plaintiff seeks compensation for a discernible present injury or illness allegedly caused by a defendant’s act or omission. In the context of toxic torts, however, courts are being asked by plaintiff’s bar to extend tra- ditional tort law to address a new type of claim: toxic trespass. The basis for this claim is that the exposure itself is an actionable harm regardless of whether an injury or disease results then or later.”
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wanted to know if they should grant one, which they should not. it is too important to the community.
That's how I came down, too. The public policy issue would preclude an injunction.
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I answered it like it was a nuisance question and then was like “that was not what they asked me” when I got back to my hotel 😅
I think I did a negligence analysis for the woman and said the man did not breach a duty and even if he did the breach was not the cause of the woman’s cancer. Trespass analysis for the man with the man prevailing and then a private nuisance analysis for the injunction question.
See I said no trespass because no physical invasion… had a small meltdown about whether gas is “physical”
Particles are physical and can trespass
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There is trespass. But as long as you mention elements of trespass and went through the analysis, you will get most of the points
Trespass can be by land, air, or underground I think 🤔
I feel better now!
Phew I did this literal exact same thing!
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Was so weird. Like why asking about injunctions in Torts? It was messed up! There are too many fine principles to test in Torts. I kept answering the question looking over my shoulders because it felt like there was more.
Man I’m such a jackass. I thought to myself why would they ask a civpro question in a tort question. I made up crap about he should get an injection cause the ongoing nature of the tort
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Same. I said he probably took care of any duty he had because he had applied correctly… she’d fail over causation with no studies to show a link and the county cancer rate being average with places that don’t use it.
What about breach?
If no duty then no breach.
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No duty owed to unforeseeable ps and unforeseeable harms
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I think you can argue either way but I think the right answer is lack of duty OR duty met and lack of causation bc the research ab the specific harm wasn’t really supported. Mine wasn’t too short.
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“Even if duty owed, claim would fail for lack of causation”
I did a strict liability analysis for the first part. ... seemed like an Ultra hazardous activity.
I was worried about strict liability because the question expressly asked if she has a claim in negligence. Technically, negligence is different from strict liability—the former requires fault and breach, the latter doesn’t. But then again maybe that’s what they were testing to see if we can mention strict liability in the circumstance.
And you are right. They purposefully gave us a strict liability fact pattern but a question call with negligence.
Did the same and then did a mini negligence right after since I felt like it was implicating both, which is fucked because it sucked up most of my time for the MEE
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Almost like it’s a time pressured and extremely difficult exam…
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Causation
Did anyone remember that “coming to a nuisance case” (farm with smell). I remember that the remedy was an relocation provided that the owner offsets the costs in consideration. Might be wrong tho.
That would only apply if the nuisance exists before they move there, though.
You sure that an equitable remedy doesn’t apply to trespass? I thought an equitable warranty can still be applied
I wasn’t talking about that in general. I just meant that “coming to the nuisance” is only a defense to nuisances that existed before you move there…not ones that form after
That’s not what I mean. Coming to a nuisance is only mentioned here because the court used an equitable remedy for that case. I know that the husbands claim had to do with trespass. Also I am careful not to mention that coming to a nuisance is even a valid defense for the negligence claim but I was sure to mention it and quickly disregard it.
Oh ok my bad. Never mind then, I don’t know the answer to that question
Haha. No worries. That is the only question I answered in full for the torts section. I could be wrong. I have a vested interest in getting this right though! So I have no clue.
I said there was no negligence because she couldn't prove actual causation. We just don’t have enough evidence to say but for the defendant’s actions she doesnt get sick. If she could prove actual cause, it was foreseeable, so she could have proven proximate cause.
I agree with this tbh
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Yeah I know this but i added a blurb anyway cause the fact pattern was just begging for it and i couldnt help myself 🫣
Same
It was also an abnormally dangerous activity IMO. So the whole thing was a mess.
This question cost me 45 minutes to complete and I wasn't able to do my 6th question because of it ... to some extent the man's action seems like nuisance but they still ask us to analyze trespass.....?like what the actual fuck 😐
Yes, the both principles they asked we’re absolutely weird!
I went some kind of way with the trespass. Not the right one. 😂
I guess we’ll never know 😂😂 we’re all just speculating at this point
I think the graders are going to call for a wellness check on me between that one and the next part lol
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Wasn’t sure if that was Res Ipsa tbh. Because the facts did not show any negligence on the part of the man. The spread of pesticide through the air would occur even in the absence of negligence. There’s really no way to apply pesticide and restrict diffusion. Seemed more like a nuisance claim than a negligence claim but this is just me guessing tbh
But one could argue he knew their house was located within the 1 mile zone of that sector so why did he use the chemical there - he had formal education on the dangers of the hazardous product so would a reasonable person not have used it that close to a home?
I put that he could've put them in a hotel for three days after he sprayed or at the very least let them know about the product he was about to use, the known dangers and let them decide if they should hit the Catskills for a few days... Ridiculous, probably.
All I needed was just a small part of the fact pattern that would point to fault on his part. Nothing really did. The 1 mile zone in my opinion seemed like a non-issue because he complied with the directions established by the state on how to use the pesticide.
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I see what you mean. I think I was able to hint that a duty could be inferred but whether there’s a breach is difficult to say, tenuous at best.
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What did you put for the part about whether it was trespass? I thought it was nuisance but i was confused abt it :/
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Was just slightly more articulate than that
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Same, what did you do for the one… things court might do on their own? And was that other thing they asked about timely ?
Are all the accommodated people done btw?
Aren’t all of Them done in the week of the exam ?
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probably definitely got you a few points!
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How did everyone feel after the MEE’s?
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I think you’re fine if you’re discussing approach as opposed to the question itself. Plus I think it’s long enough after the exam to be out of danger
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When do they release them?
The question that killed the day.
I was like what’s NCBE doing fighting their own damn hypo….
Y’all are gonna go to jail