QUESTIONS

You may choose whether you would like to serve as legal counsel for Eli or the Owner. Incorporate into your responses how this scenario is similar to the case(s) under "Universe" that provide the most support for your argument, and how it is different from the case(s) in which the judges decided the opposite of the result you hope to achieve now. You may also draw upon dissents, where appropriate.

Your brief should address the following questions: 1. What is negligence?

Negligence = Unintentional Tort, tort of negligence has four elements

-standard of reasonable care

(think element of duty). If the defendant owes a duty of care to the defendant (*you don't always owe a duty of care to the people around you though)? |Two main ways to set up a duty of care:Feasance and Foreseeability 1.) so if you take an affirmative act, and that act creates a foreseeable risk, you have a duty to mitigate those risks. 2.)Special Relationship when you haven't acted but you still have a duty of care to someone. Ex. landlord and their tenant

-breach of duty

Once we've decided a person owes a duty to someone else, we ask, what is the duty that is required of that person? Is my duty limited to some action that is reasonable? Not every possible mitigation is reasonable? This is an objective standard. Probability of injury + seriousness of loss > burden of taking precautions. If the burden is greater than the expected harm than those precautions are unreasonable. For the case of this memo, identify one specific precaution, if you are arguing that the owner is negligent, that the owner should have and failed to take. And argue why the burden of taking that precaution was not greater than the expected harm. (netting?). If you are defending the owner you can argue 1. That the owner has no duty 2. That the burden of taking the precaution is actually unreasonable and thus the owner didn't have to take it because they're only required to take reasonable actions.

-causation

Factual Causation: "but for cause", the failure of the person to take the required action the injury wouldn't have happened. Actual Causation: connection between negligence and harm. The defendant's actions were a substantial factor in the harm caused

-resulting damages

Nature of injury and any costs resulting from injury

2. Has the Owner been negligent? In answering this question, make sure that you focus appropriately on the elements of negligence that are most in question in this case.

3.. What are the public policy implications of a decision in your favor?

BACKGROUND

Eli attends a baseball game one summer afternoon. He is a big fan and has spent most of his summers going to baseball games at this stadium. Eli initially sits in the nosebleed seats but notices that there aren't too many people that day and decides to move closer to the action. Eventually he settles in a few rows up from the field in an area that is not covered by netting. In this ballpark, as in many others, the netting blocks a portion, but not all, of the seats from objects that can be thrown from the field. Eli chose to sit beyond the netting because it obscures his view of the game.

Shortly after he changes seats, the mascot "Scottie" comes out to begin his "Pretzel Launch," a traditional part of every game. Scottie has a theme song which blares out over the loudspeakers to let everyone know that the launch is about to begin. Usually, Scottie looks directly at the audience while using an underhanded throw, but sometimes he will turn around and throw his pretzels overhand behind his back. As Eli is talking to the person sitting next to him, Scottie completes a backward throw, and the pretzel hits Eli squarely in the eye. Eli feels a sharp pain, goes to the doctor after the game ends, and is diagnosed with a detached retina that requires surgery to repair.

Eli wants to sue the owner of the team (the "Owner") for negligence. This jurisdiction has established a mixed comparative negligence or fault regime.

UNIVERSE closed universe, so working in legal jurisdiction where this is all the law you need to know for assignment.

In this universe, this is a case of first impression. The following guidelines and cases are the only ones that apply. Treat the cases as persuasive authority, not binding precedent. (so no one case should dictate the outcome).

Loughran v. The Phillies,888 A.2d 872 (2005) Cohen v. Sterling Mets, L.P., 17 Misc. 3d 218 (N.Y. Sup. Ct. 2007) Lowe v. California League of Prof. Baseball,56 Cal. App. 4th 112 (1997)

*If you want to use the dissent, use it as equally persuasive as the majority

INSTRUCTIONS

Help draft a memo supporting your side, demonstrating an understanding of legal reasoning and using all of the cases provided under "Universe." No outside research or reading except for these materials is encouraged.

• Short Introduction.The introduction sets the stage for the reader by briefly stating what the goal of the paper (e.g., "This memo will clarify..." or "This memo will establish..." or similar.)

• Legal Reasoning.In answering each of the questions presented in the writing assignment, the most important part is the analysis and discussion of the issues presented in the case. Please try to explain the cases in layman terms and give interpretations whenever possible; refrain from relying heavily on direct quotes unless they are necessary. Use facts from the case to support your reasoning or refute the opposing side's arguments.Make sure that you are answering the questions fully.

NOTES I want to consider:

Useful to discuss

No-Duty Rule:the no-duty rule is not the same as assumption of risk, even though some courts treat them very similarly. The easiest way to think about the difference between the two is that the no-duty rulenegates the owner's duty to Eli (owner owes no duty to Eli, period), whereas the assumption of risk defense bars liability even if the owner owes a duty of care to Eli. For your purposes, here is what you can do to keep them separate:

• Discuss the no-duty rule in the second question when you are analyzing whether the owner owes a duty of reasonable care to Eli. Focus on whether the risk of harm is "common, frequent, and expected."
• Discuss assumption of risk in the third question. This is a defense the owner might raiseeven if Eli can prove all the elements of negligence.Focus on whether Eli voluntarily assumed a risk that was "open and obvious."
• Mixed comparative fault regime:be careful!! The assignment states that you are operating in a jurisdiction that "has established a mixed comparative negligence or fault regime." Mixed comparative fault is a combination of contributory negligence and comparative fault. Here is a general definition:
  • Mixed comparative fault: under a mixed comparative fault regime, the central question iswho is more at fault fo the harm.
    • If the plaintiff is more than 50% responsible for the harm, then you analyze it as you would under contributory negligence i.e., the plaintiff loses.
    • However, if the plaintiff is less than 50% responsible for the damages, it becomes just pure comparative fault, meaning that the plaintiff will be able to recover the remaining share of damages that were due to the defendant's negligence. For example, if the plaintiff is 20% responsible and the defendant is 80% responsible, the plaintiff will be able to recover 80% of damages from the defendant.
• Negligence = Unintentional Torts (do not confuse the tort of negligence with the negligence standard of responsible care)

* Eli moved seats from the "nosebleed" where there is no netting, and was distracted talking to another fan during the mascot throwing. USE AS MUCH AS THE FACTS AS THE CASE AS POSSIBLE WHEN ANSWERING QUESTIONS and all three cases provided

Choose a side serve as legal counsel for Eli or Owner

INSTRUCTIONS

draft a memo supporting your side, demonstrating an understanding of legal reasoning and using all of the cases provided under "Universe."

Outline im using

Question 1: short introduction for what negligence is assuming the reader has no idea what this memo or this concept is. Then define the tort of negligence (not the standard. Don't confuse the tort of negligence with the negligence standard)

State and define all elements of negligence and all sub elements (duty-feasance/ foreseeability & special relationship, breach- B

Question 2:

State conclusion (has or has not the owner been negligent, and here's why...). Find the elements of negligence that are most in question, but make sure to discuss all. Identify the elements that are most in view and focus the bulk of answer on these elements and dedicate a sentence explaining if element(s) not in dispute and why. Find legally relevant facts and use them in analysis and refer to definition of elements then apply them. Refer to similar/dissimilar facts in the universe. Use case law to support your position. Keep in mind that you need to use all three cases throughout. (1) For cases that support your position, try and make them sound similar and argue for why the court should be persuaded by the precedent. (2) For cases that DO NOT support your position, try to distinguish them away

Question 3: Public policy implications: how future relevant/ similarly situated actors will react to a decision in your favor? How will the decision affect the value (social and/or personal) of the game of baseball (it might change essential elements of the game that make it attractive or it might transform the experience for fans or owners)? How will your decision shift the duty of care among actors? Is this shift desirable? Why? (Fewer implications with deeper is better than more and shallower)

*one case does touch in the majority decision on policy and gives you helpful ideas for this question.