Synthesizing the Law- General to Specific - KV, 57-67 + Handout (Swan v. Jackson and Mauer v. Ferguson)

a duty hypothetical: obvious duties

• personnel → person: keep them safe

• bartender → person: not getting them drunk/cutting them off

• rescue → person: saving the person

a duty hypothetical: mitigating factors

• safety briefing

• shouldnt have gotten that drunk (why selling that package of unlimited drinks?)

a duty hypothetical: helpful info for you to have as you seek to develop your duty argument?

• blood alc levels

• weather

• deck rails

• where safety meeting was held; properly announced; did they make her go?

• how many people were working?

• was she authorized to be there on deck?

• fell off, safety measures?

• weather? sea conditions?

synthesizing the law (step 3 in LR)

synthesize the rules of law into a single coherent framework that can be applied to the facts

what does synthesizing the law mean?

We are going to form the rules of the law by combining its parts and elements- a single rule from a number of holdings to govern a situation that may not be within the factual predicate of the prior ruling

examples of synthesized law (our cases)

• tho v win/loop v/ coughtry v/devlin v

  • variations on a theme

  • taking parts from each one to make a coherent rule for everyone

synthesis meaning

joining things together ex. Frankenstein-ing them together

Synthesizing rules into a coherent framework

the lawyer created an outline of the applicable rules - with more specific rules categorized under more general rules

when it comes to synthesizing rules into a coherent framework, think deadly weapon

a broad category with the specific weapons enumerated underneath (guns, ninja stars) (general to specific)

deadly weapon, penal law

def of term

• lawyers have worked w these and said more things that apply; not enumerated but out there (someone else synthesized other weapons to be apart of penal code)

examples of penal law and burglars tools

• NY penal law 120.05 (2)

  • pocket part (back of the book) all cases of the year that help define if they are considered or not considered deadly weapons → helps define the law

  • ex. motor vehicle, boots/shoes, sticks/stones, hands, walls, sidewalk, shiv, etc.

• Burglars tools

  • ex. robber gloves, claw hammer, screwdrivers, toothpicks, bolt cutters (depends on case (just listed))

A person is guilty of assault in the 2nd degree when

With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

holding v dictim

Not all rules will be applied the same way- Lawyers will have to take note of the source of the rules- statues and case law. If it is case law- what are the holdings and what are dictum (non-binding)

binding v not binding

holding v dictim

relationship among rules: One rule may define an element of another rule- example of battery- Definition- “one who intentionally touches another in an offensive way is liable for a battery. “ A second case may say that a touch is offensive if a reasonable person under the circumstances would find it to be offensive.

This rule on offensiveness defines an element within the first rule. This 2nd rule will be categorized under the general rule for battery.

battery def example

1. what qualifies as offensive? how is it defined?

2. what qualifies as reasonable?

one element in rule can define the other

3. how it intentionally defined?

statutory rules

When the general rule is a statute- the more specific rules defining its elements are likely to include both statutory and case law rules.

statutory rules: assault (NY) and battery

Many statutes start with a definition section that define the elements- this is created by the legislature but if that does not exist-case law and the courts will define these elements-mixture of enacted and case law

statutory rules (simple)

1. def elements

2. cases add to them

If the general rule is a case law rule

The lawyer usually finds that the more specific rules defining the elements of the case law rule are based on case law themselves. Statutes are rarely enacted to clarify the elements of a case law rule

If the general rule is a case law rule example

hiking boot v sneaker or gravity knife v butter knife

• relying on other case law to define precedent

• usually doesn’t go back to change

Statutory Definitions

are enacted almost exclusively for the purpose of defining the elements of statutory rules.

application

One rule may serve as an application of another rule.-

application example

KV- a case may exist where the holding is “ a physician who performs an operation without consent is liable for assault” This rule creates a specific liability.

• wouldnt apply to a regular person

Holdings are very often particularized

applications of rules

holdings: think about the cases we have discussed with negligence- How particular was Coughtry? Devlin?

• Coughtry: 50ft

• Devil: 90ft

• these heights were specific

More specific rules are usually created by case law-

courts apply statutes and case law to specific situations

• ex. does this apply to me? facts dont apply? etc.

legislatures tend to keep laws highly general- an exception would be

administrative rules which are regulations implementing a statute and will be very specific- those rules make the agency run...

A rule may serve as a limitation on the scope of another rule-

a rule may specify a specific situation where another rule may not apply.

rules can limit other rules example

• self defense- if you are using reasonable force against another person necessary for self-defense- you are not liable for assault

• rule of SD limits rule of assault

sub rules

These narrower, limiting rules will often be treated as sub-rules

Identifying the General Rule can be tough

• It might be difficult to decide what is the general rule and what is the exception. I

• f the exception is applied to an increasingly broader range of circumstances until the supposed exception becomes more broadly applied than the general rule- “the exception swallows the rule”

too many exceptions →

swallows the general rule

example of too many exceptions

The ministerial exception-This exception is meant as a carve out to workplace anti- discrimination laws for the hiring and firing of religious leaders by houses of worship and related religious organizations. However, some religious employers are attempting to expand this exception and strip employees of civil rights protections, saying all of their employees are minister.

• meant for very specific things but overtime, when you expand it → gets cloudy/things slip through

Statutory Rules: Are likely to state what is the general rule and what is the exception, so they avoid this phenomenon BUT

When the general rule is a case law rule most of the exceptions are case law rules too.

rules/courts usually want the

plain meaning rule

sep of powers: Precludes the courts from modifying statutes

through case law BUT Courts can limit statutes by

1. interpreting the language of the statute to determine that the statute does not apply in a situation

2. Hold that the statute is unconstitutional – the enacted rule is overridden by the supreme enacted rule- The Constitution.

sep of powers continued

• courts dont like to “make” laws but interpret which still makes laws in a way

  • law doesnt apply

  • unconstitutional

cumulative rules: One rule may be cumulative to another. One rule may describe a different right or duty than another rule? WHAT?

Example- common law torts existing side by side with their statutory twins.

• ex. enacted law to cover tort law

• ex. battery tort → assault

rules that contradict other rules, in theory this isnt supposed to happen. WHEN IT DOES lawyers can:

1. treat one rule as superseding another- federal rules supersede state rules

ex. fed law applies then freak state law

2. The rule developed later in time displaces the earlier rule. Statutory laws readily conform to this application. Case law rules- a bit different- Courts can proclaim the earlier can no longer applies or if the reasoning is thoroughly repudiated it is overruled sub silentio (by silence)

• ex. adultery & jostling (purpose: prevent stealing/pickpocketing) → penal law has a lot of old crimes

3. either rule is treated as the general rule but the rules are regarded as applicable to mutually exclusive sets of circumstances- thus creating 2 complimentary sets of rules

• ex. 2 diff sets of rules - which one applies? (ex. trespassers- lesser protection for them because there are rules protecting property rights. (velma v fred midterm example: velma invited while fred was not)

Our series of negligence cases: What is the common issue in these cases?

• privity of contract (duty, do we ignore it)

• negligence

• protection of people v fairness of private companies (courts role)

Our series of negligence cases: What rule or rules do the parties and or the court identify to justify their position on the in this issue?

• immediate danger to human life

• duty between parties

• inherent danger

• natural consequences

swan v jackson

Facts: Defendant Jackson built an ice-box for John Boettcher, a

Brooklyn meat market owner. The box was about 12 ft high with a

platform about 6 ft up, held by iron arms, for men to stand on while

loading ice (hoisted by ropes and pulleys). Evidence suggested the

arms were defective. Plaintiff Swan worked for an ice company

supplying Boettcher and had to stand on the platform; an arm broke, the

platform dropped, and he was badly hurt.

•P History: complaint dismissed at the close of plaintiff's case; plaintiff

appealed; judgment affirmed, with costs (¶5).

• Issue: Is a builder liable to a stranger to the contract (no privity) injured

by a defect after the structure passed to the owner, where plaintiff says

the case fits the Thomas/Coughtry/Devlin exception?

• Rule (¶2): generally no liability without privity: a stranger can't recover

from the builder for defective construction after title has passed and the

object is out of his possession, control and direction (owner now in

control). Exception (¶3): liability where the defect makes the article

imminently dangerous and serious injury results from use (Thomas;

Coughtry, ~50 ft; Devlin, ~90 ft: misfortune to third persons is a "natural

and necessary consequence" of the builder's negligence).

• Reasoning: (¶2) Mayor v. Cunliff barn-timber hypothetical, Loop

(balance wheel) and Losee v. Clute are similar and "decisive." (¶3)

Plaintiff also invokes Heaven v. Pender (English Court of Appeal; not

discussed in the excerpt). (¶4) Not analogous: the platform was 6 ft from

the floor and built to hold one man while filling the box; it can't be

assumed injury to third persons would be a natural and necessary

consequence. Controlled by the general rule, not the Devlin exceptions.

• Objective theory (alternative): no dissent shown. Plaintiff's theory: the

platform was built for the very people who would stand on it (like the scaffolds) so the duty should follow. The court answers with height and

degree of danger.

• Slide 33 note: the slide says the case "is to follow statute," but the

opinion says the general rule of law established in this state, a case

law rule (Cunliff, Loop, Losee), not a statute.

Slide Qs: Players: Boettcher (meat market owner; hired Jackson),

Jackson (builder; defendant), Swan (plaintiff; ice company employee).

Like: Loop, Cunliff's barn, Losee. Not like: Coughtry (50 ft) and Devlin (90

ft).

swan v jackson facts

Defendant Jackson built an ice-box for John Boettcher, a

Brooklyn meat market owner. The box was about 12 ft high with a

platform about 6 ft up, held by iron arms, for men to stand on while

loading ice (hoisted by ropes and pulleys). Evidence suggested the

arms were defective. Plaintiff Swan worked for an ice company

supplying Boettcher and had to stand on the platform; an arm broke, the

platform dropped, and he was badly hurt.

swan v jackson: procedural history

complaint dismissed at the close of plaintiff's case; plaintiff

appealed; judgment affirmed, with costs (¶5).

swan v jackson: issue

Is a builder liable to a stranger to the contract (no privity) injured

by a defect after the structure passed to the owner, where plaintiff says

the case fits the Thomas/Coughtry/Devlin exception?

swan v jackson: rule

(¶2): generally no liability without privity: a stranger can't recover

from the builder for defective construction after title has passed and the

object is out of his possession, control and direction (owner now in

control). Exception (¶3): liability where the defect makes the article

imminently dangerous and serious injury results from use (Thomas;

Coughtry, ~50 ft; Devlin, ~90 ft: misfortune to third persons is a "natural

and necessary consequence" of the builder's negligence).

swan v jackson: reasoning

(¶2) Mayor v. Cunliff barn-timber hypothetical, Loop

(balance wheel) and Losee v. Clute are similar and "decisive." (¶3)

Plaintiff also invokes Heaven v. Pender (English Court of Appeal; not

discussed in the excerpt). (¶4) Not analogous: the platform was 6 ft from

the floor and built to hold one man while filling the box; it can't be

assumed injury to third persons would be a natural and necessary

consequence. Controlled by the general rule, not the Devlin exceptions.

swan v jackson: objective theory

no dissent shown. Plaintiff's theory: the

platform was built for the very people who would stand on it (like the scaffolds) so the duty should follow. The court answers with height and

degree of danger.

Swan v. Jackson: players

• john - meat market owner

• jackson - build ice box

• swan - delivers ice

swan v jackson: what happened?

• jack built platform for ice box - iron supports defective

• swan delivered ice → plat fell → badly injured

• (platform helps you delivered ice (sinks down while you stand above)

• platform 6ft

• ice box 12ft

• 12ft wouldnt die - badly injured

swan v jackson is like

coughty v devlin: bc of scaffolding

swan v jackson is not like coughty v devlin bc

height of scaffolding (only 6ft high)

A very particular holding (swan v jackson)

The scaffold in question here is only 6 feet high and constructed to sustain the weight of a man while he was filling the ice box- we DO NOT think misfortune would be natural –Court says clearly this would not be an exception to the rule- this case is to follow statute