BLOGIPSALOQUITOR

1. How exactly do you distinguish between who is an invitee and licensee.
1. Specifically, “In the restatement definition of invitee, which defines the duty owed to each of these, section 343 there seems to be an overlap with another restatement. (section 324); In the event we would get a question on the test about a commercial business and their duty to an invitee, which restatement would we use? The definitions of the duty overlap, but they do not coincide.

The Restatement sections cited discuss the duty of care for invitees and licensees. Not how to identify them. I specifically told the class the case they should refer to for the duty of care.

If there is any confusion in your mind about whether a party is an invitee or licensee, discuss that question to the best of your ability. Note the definition found in your book regarding a public invitee.

2. Should the students not use the form “A will argue…, B will argue” for discussing both sides of an issue?

I really don’t care. What I want students to avoid is giving a long back and forth that crosses issues. As long as students are discussing particular issues that arise in specific elements of specific torts, they can discuss it however they like. As a matter of fact, although I have preferences for how to word things, that does not enter into the grade, except where I have explicitly told you to use certain words or not use certain words.

3. If a question were to say “Do not discuss negligence,” could the students still possibly discuss Negligent Infliction of Emotional Distress?

That is a very good question. Negligent Infliction of Emotional Distress is sometimes considered a separate tort. However, it is more logical to think of it as just negligence with restrictions on the extent of the duty. However, for purposes of the exam, I’ll answer the question NO.

4 How many questions will be on the exam?

I never answer questions about what WILL be on the exam. Besides, what difference could it make in your preparation?

5 Will you be including a list of “assumptions for the exam” at the beginning of this year’s exam as you did last year (i.e., saying that we are in a Lieb jurisdiction for NIED, or that we are in a contributory negligence, not comparative negligence jurisdiction)?

This is another question that cannot affect your preparation. At least it should not.

After you take the exam, don’t write me asking anything about the exam. Don’t worry if you think you did very badly. You have no way of knowing. I can’t answer any questions. Remember my advice: When its over its over. What happens in the exam room stays in the exam room.

Have a good holiday.

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THe problems are in addition to the assigned reading NOT in lieu of the assigned reading.

Sorry if there was some confusion.

(1) Please click here to download problems we will discuss during the next two class session. The first problem is a slightly modified version of the problem I distributed during the last class.

(2)Click here to download a PDF version of the transcript of the recent Supreme COurt argument regarding punitive damages.

(3) Here is a link to the podcast of the Justice Talking show dealing with punitive damages.Click on the link to listen to the update of tobacco litigation.

I will try to have the podcast (Number 9) available on Sunday.

Here it is.

T_F06_PC_10.mp3

Number 9 will follow shortly.

November 13: Rescue & Rescuers; EMotional Distress
November 16 Economic Harm; Wrongful Life & Birth
November 20: Damages & Traditional Strict LIability
November 27 & 28: Products LIability

On Sunday Podcast on Defenses and Owners & Occupiers

Here is an update on two questions raised in class.

Q Does Maryland Follow the Restatement section or the older definition of attractive nuisance?

A: This is a trick question. Maryland does not recognize the attractive nuisance rule. See Hearing v. Christensen, 252 Md. 240, 249 A.2d 718, 719 (Md.1972); Macke Laundry Service Co. v. Weber, 267 Md. 426, 298 A.2d 27, 29. Thanks to Talin Hitik for her research expertise.

Q How is one to interpret the following portion of Restatement section 339?

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

A: As Mr. Steer correctly pointed out, the thrust of section 339 apppears to be to limit the scope of the attractive nuisance doctrine. 3339(d) should thus be read as follows: "Even if the burden is less than the risk, that is not good enough for the plaintiff. The burden must be slight compared to the risk." The following chart illustrates the idea:

Right to say ‘no’ ends when intercourse begins

October 31, 2006
By ANN W. PARKS,
Daily Record Assistant Legal Editor

A jury in a rape trial was entitled to a straight answer when it asked whether a woman could withdraw her consent after sexual intercourse began, the Court of Special Appeals held yesterday.

The question was not ambiguous — and the answer was no, Judge Arrie W. Davis wrote for the unanimous three-judge panel.

Maryland has never abandoned the common-law tenet under which, “if a woman consents prior to penetration and withdraws consent following penetration, there is no rape,” Davis wrote.

Del. Jean B. Cryor, R-Montgomery, said yesterday that the Women’s Caucus of the Maryland General Assembly will certainly want to take a look at the case during the next legislative session. The caucus examines legislation that directly affects women and children and fights bills that go against what women need, she said.

“It’s a serious question,” she said. “You can hear them saying, ‘We have to rule this way because there hasn’t been any law.’ In the absence of any law, here we are.”

Jennifer Pollitt Hill, executive director of the Maryland Coalition Against Sexual Assault, had not reviewed the case yesterday afternoon but was distressed to hear about the court’s statement concerning the law in Maryland.

“That’s just flat out insulting and dangerous,” she said of the law, noting that most sexual assaults are committed by people who are known to the victim. “We believe that people have the right to say no at any time.”

Refused to answer

The decision reverses the conviction of Maouloud Baby in Montgomery County Circuit Court. At the December 2004 trial for rape and sexual offense charges, the jury inquired whether a sex act can constitute rape if the defendant continues after the complainant changes her mind. Judge Louise G. Scrivener refused to answer the question — referring the jurors to the legal definition of rape, which did not aid in the matter.

The Court of Special Appeals, on appeal, concluded that the question was not ambiguous and thus required a proper response.

“[T]he jury in this case simply wanted to know if consent could be withdrawn after commencement of the ‘sex act,’ i.e., penetration,” Judge Arrie W. Davis wrote for the court. “The fact that there was testimony that appellant had ceased his attempt to penetrate the prosecutrix within seconds after she told him to stop leaves little doubt that the jury sought to determine when, in point of time, a withdrawal of consent would sustain a conviction for rape.”

And the answer to the jury’s question — i.e., whether a defendant can be guilty of rape if a victim withdraws her consent to sexual intercourse after penetration — is no, the intermediate court concluded.

The correct principle, which originated in English common law and which was apparently upheld by the Court of Appeals in one line of the 1980 case of Battle v. State, is that “if a woman consents prior to penetration and withdraws consent following penetration,” the offense of rape cannot occur.

“Maryland adheres to this tenet, having adopted the common law, which remains the law of the land until and unless changed by the State’s highest court or by statute,” Davis wrote. “Battle has not been overruled or commented upon by Maryland authorities on the question of whether withdrawal of consent after penetration constitutes rape.”

Consent?

The 18-year-old complainant, a student at Montgomery College, was visiting a McDonald’s restaurant in Montgomery Village with a friend in December 2003 when she encountered the appellant, who was also with a friend, Michael Wilson. The appellant was 16 years old at the time.

According to the opinion, the appellant persuaded the complainant to give him and his friend a ride in her car. The three rode to a residential neighborhood, and Wilson engaged in sexual intercourse with the complainant. When the appellant wanted to do the same, the complainant said that he could, “as long as he stops when I tell him to.”

After penetration began, however, she withdrew her consent. Later that evening, she related what had happened to a friend’s mother, who called the police. The complainant was taken to a hospital.

Wilson pled guilty in the case; a trial of appellant Baby ended in a mistrial. After a retrial, he was convicted of first-degree rape, second degree sexual offense and two counts of third-degree sexual offense.

He was sentenced to 15 years imprisonment, with all but five years suspended and five years probation upon his release.

Although it agreed with Baby on the jury instruction/consent issue — and granted a new trial on those grounds — the intermediate appellate court rejected Baby’s contention that a juror who had read a newspaper article about the case should have been immediately removed from the case, lest he unfairly influence his fellow jurors. (The juror was removed eventually).

It also held that the circuit court properly denied Baby’s motion to exclude expert testimony regarding rape trauma syndrome.

Woman Hurt in 'Shake-It-Like-Shakira'

NEW YORK - A woman who said she fell off a slippery bar and injured herself while dancing in a "Shake-It-Like-Shakira" contest is suing the Manhattan saloon that sponsored the competition.

Megan Zacher, 22, of Delanco, N.J., fell at Calico Jack's Cantina on 42nd Street and Second Avenue.. The fall caused a torn knee ligament that required surgery.

Zacher and two friends were celebrating a birthday. She had been at the crowded establishment about an hour, was working on her second drink and was dancing on the bar, vying for the $250 "Shake-It-Like-Shakira" prize, when she fell.

Shakira, pop songstress originally from Colombia, who also has Lebanese ancestry, is famous for her eye-catching belly dance moves in her videos and in-person appearances. Her latest hit is "Hips Don't Lie."

There were about 10 other women on the bar. Her friends, schoolmates from Staten Island's Wagner College, did not take part in the jiggle competition, which required a $35 entry fee.

Zachar said the bar area was wet and unsafe and the bar failed to warn customers.

Monday, October 30: (1) 283-287;
(2) Restatement. §479-480; These Restatement sections are in your syllabus.
(3) KELLvMCCARRICK.doc

Thursday, November 2: 405-422; 426-433

CLICK HERE FOR PODCAST #8 T_F06_PC_08.mp3

Below are accompanying charts. You might have to click on MORE.

Some of you do not have the complete case.

Channel_v_Mills.doc

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