Nerd alert: This post is a real life assignment for my Legal Research and Writing Course! Last week we talked about the power of legal blogs and then attempted to write our own (lucky for you, the assignment was only 300 words).
Did you know legal blogs were a thing?? I absolutely did not. But after learning a bit about them, I can say with confidence that Legally Blonde AF does NOT count. Legal blogs have real legal information in them, not just a law student blabbing about her classes, friends, and outfit choices. And honestly, it sounds like there are some really interesting ones (I’ll do some research, but here’s a list of the best from 2018: http://www.abajournal.com/magazine/article/best_law_blogs_2018) If nothing else, this week’s post will capture The Spirit of Legal Blogs as I explain one of the policies in our end-of-semester, graded memorandum.
To recap – LRW is a class where all first-year law students learn to use special databases for legal research, draft legal briefs, and get INTIMATELY familiar with the CRuPAC structure in memos (Conclusion-Rule-Proof-Application-Conclusion. AKA, the legal version of the 5th grade Intro-Body-Body-Body-Conclusion. Remember that? Good times). We draft a couple of memos each semester because a memo combines the “research” and “writing” components of LRW into a nice, neat package. Theoretically. Each memo presents a set of facts and a legal question. Then, using case law and the specific memorandum structure, we take a position on how that legal question could be answered and how the court is likely to rule.
THIS particular memo is about a bear attack in a National Park in New Mexico(completely hypothetical). Prior to the accident, the Rangers needed to replace all the park’s old, crumbling bear warning signs. Unfortunately there was way more “Park” than “Rangers” available for the replacement, so a one-for-one sign swap wasn’t possible. Instead, the two Park Rangers in our saga removed the old warning signs three days before the new ones went up. Of course, during the three days without signage, two campers were attacked by a bear. Now the injured campers want damages for being mauled, and are suing the government about the sign removal plan and the sign removal itself. (This article will only talk about the sign removal…the plan itself was a whole separate issue). Like me, you might read that and say, uhhhh heck yes! That’s terrible, the government should probably cough up a cool MIL for those poor campers! Right?
Well…maybe not. First of all, the government can’t always be sued. I KNOW. Sometimes when a government employee commits a crime, you can only sue the individual person and not the government itself. Other times, you can sue both. It all depends which law you’re suing under. The victims in our fact pattern are suing for negligence (conduct that leads to a risk of major bodily injury or death to someone) under the Federal Torts Claim Act. The FTCA says that you can sue the government for a government employee’s offense, IF the employee was doing their government job at the time of their offense. In this scenario, the Park Rangers were instructed to take down warning signs, and they took down the signs; they’re Park Rangers so that’s definitely in their job description. Therefore, they were working for the government during the ‘negligent’ sign removal, and the government can be sued. SEE YOU IN COURT, BABY!
Except, never forget: this is the American legal system and NOTHING is that simple. To figure out if the government can be sued, we first have to figure out WHAT a Park Ranger’s job (in legal terms, their “scope of employment”) means. Otherwise, we’ll never tell if the employee was within that scope when they acted. Since the alleged offense happened in New Mexico, we look to New Mexico’s state law about “scope of employment” (each state has a slightly different version). New Mexico courts have a four-part “test” for this. It’s called the Narney Test because it came out of a case involving a guy named Narney…yea, lawyers are REAL creative. These four parts are:
- Was the employee doing an activity that makes sense to their job?
- Were the actions taken within a reasonable distance from said job?
- And also, reasonably within the hours when the employee was working?
- Finally, was the employee doing something to benefit their employer?
Before you say, I KNOW THE ANSWER! The Park Rangers were taking down signs, in a national park, when they were on duty, for their employer! The WERE working for the government!!!! …let me give you some facts that might change your mind. IT’S HYPO TIME!
- What if the Park Rangers went rogue and removed signs they were expressly told NOT to remove?
- Or the Rangers were drunk when they took down the signs?
- What if the Rangers were on duty but at the wrong campsite?
- Or suppose the Rangers were supposed to remove the signs, but were off-duty when they did?
Those four little hypos, in a nutshell, is why LRW can get so freaking frustrating. Our memo corresponds with the second “what if;” in our fact pattern, the Park Rangers were on duty but intoxicated when they used an ax to hack down the old signs. When I first read that, I immediately thought “okay well, they’re clearly NOT being paid to drink and mess around, so they’re probably outside the scope of their employment.” But in New Mexico case law, an employee has to be completely motivated by their own personal reasons for an action to be outside the scope of their employment. Therefore, just the fact that the Park Rangers were on duty and following some type of order from their employer is probably enough to make the government liable.
Wild, right? This is only half of the memo prompt we’ve all been struggling with, and half of the problem that’ll be our entire grade for the semester. Yeesh. But the whole point of this exercise, and legal blogs in general, is to take complex legal issues and explain them as non-technically as possible. It was a fun little assignment, especially since I knew it would go straight here! I have no idea if I accomplished the task or not, so stay tuned to see if I get fired or if it’s just the poor Park Rangers ✌