From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: ba.general,misc.kids,misc.legal
Subject: Attractive Nuisance Common LAw( was: East Bay Regional . . .)
Date: 12 Oct 92 07:24:59 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Followup-To: misc.legal
Organization: Amdahl Corporation

In article <1992Oct9.190351.29481@telebit.com>, brunner@telebit.com (Eric 
Brunner) writes:
> In article <3f7S02Mr25FI01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com 
> (Terry Carroll) writes:
> >In article <1992Oct8.205310.8206@telebit.com>, brunner@telebit.com (Eric 
> >Brunner) writes:
> >> n article <1992Oct8.185834.23015@leland.Stanford.EDU> 
> >eap@leland.Stanford.EDU 
> >> (Eric Perozziello) writes:
> >> >In article <1992Oct7.003015.26189@telebit.com> brunner@telebit.com 
(Eric 
> >> Brunner) writes:
> 
> [in response to something I wrote, my fragments omitted.]
> 
> >1) That's a state law issue, not a US issue.  No court can decide this 
> >question for the entire US: state courts can only decide for their state, 
and 
> >federal courts do not have jurisdiction in this type of case.  That being 
> >said, I don't doubt that certain states have so ruled.
> 
> Um, Terry, before picking nits on state versus federal versus common
> versus Hawaii or Oregon via post, which might encourage the persistent
> nada-comprehedre future defendents of this thread to think themselves
> judgement-proof, couldn't you have written? Welk is a California case,
> and oddly, California tort cases get cited outside of California on
> occasion.

I wasn't doubting your word, Eric, and it wasn't a flame, so I didn't see the 
justification to drop down to email.  I thought my comment was a worthy 
addition to the thread.

Now, here's my point, which seems to have gone past you (I won't address 
whether it was a bad catch on your part or a wild pitch on mine :-) ):

Your comment was that "The N.A. liability issue was settled in the US with 
the turntable case."  My point is that the only court system that can settle 
something for the US is the federal system.  This is a case of deciding state 
law, and federal courts don't have jurisdiction in this kind of case.  The 
most they may do is (in theory, anyway) apply state law as it exists, and 
then only if they're deciding a state claim that worked it's way into federal 
courts through diversity of citizenship or other means.

So it's up to the individual states.  And, no state court can decide for 
other states.

Of course, if a case is particularly well thought out, other states will 
reference it and adopt its teachings, but until that happens, it isn't in any 
force in those states.

So to say "The N.A. liability issue was settled in the US with the turntable 
case" is misinformation.  I suspected it was based on something factual, and 
wanted to find out what the grain of truth in it was. 

> If you vant to pik dis nit for the lay reader, which states don't have
> A.N. would be more helpful than the semi-cryptic "federal courts do not
> have jurisdiction in this type of case."

I'm totally missing your point here.  Are you asking me which states don't 
have AN laws?  I don't know.  Are you saying that I should have asked?  I 
don't care.

> 
> >2) The case no doubt either a) turned on a state statute, or b) ruled 
where 
> >no statute existed at the time.  In either event, the legislature may 
> >override and either a) change the statute or b) enact a statute covering 
the 
> >prior vaccuum.  A court decision does not forclose the legislature from 
> >acting.
> 
> Um, are you suggesting that state's legislatures, usually comprised of
> persons with some legal education, are going to set aside the A.N.
> doctrine?

No.

Since this is getting more on the legal technical issues, I'm directing 
followups to misc.legal only.

Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.