Something Borrowed - Emily Giffin [15]
"You'd prefer not to?" Zigman cocked his head.
"That's correct. There could be dynamite wrapped inside it."
Half of the class gasped, the other half snickered. Clearly, Zigman had some tactic up his sleeve, some way of turning the facts around on Dex. But Dex wasn't falling for it. Zigman was visibly frustrated.
"Well, let's suppose you did choose to return it to me and it did contain a stick of dynamite and it did cause injury to your person. Then what, Mr. Thaler?"
"Then I would sue you, and likely I would win."
"And would that recovery be consistent with Judge Cardozo's rationale in the majority holding?"
"No. It would not."
"Oh, really? And why not?"
"Because I'd sue you for an intentional tort, and Cardozo was talking about negligence, was he not?" Dex raised his voice to match Zigman's.
I think I stopped breathing as Zigman pressed his palms together and brought them neatly against his chest as though he were praying. "I ask the questions in this classroom. If that's all right with you, Mr. Thaler?"
Dex shrugged as if to say, have it your way, makes no difference to me.
"Well, let's suppose that I accidentally dropped my paper onto your desk, and you returned it and were injured. Would Mr. Cardozo allow you full recovery?"
"Sure."
"And why is that?"
Dex sighed to show that the exercise was boring him and then said swiftly and clearly, "Because it was entirely foreseeable that the dynamite could cause injury to me. Your dropping the paper containing dynamite into my personal space violated my legally protected interest. Your negligent act caused a hazard apparent to the eye of ordinary vigilance."
I studied the highlighted portions of my book. Dex was quoting sections of Cardozo's opinion verbatim, without so much as glancing at his book or notes. The whole class was spellbound—nobody did this well, and certainly not with Zigman looming over him.
"And if Ms. Myers sued," Zigman said, pointing to a trembling Julie
Myers on the other side of the classroom, his victim from the day before. "Should she be allowed recovery?"
"Under Cardozo's holding or Justice Andrews's dissent?"
"The latter. As it is the opinion you share."
"Yes. Everyone owes to the world at large the duty of refraining from acts which unreasonably threaten the safety of others," Dex said, another straight quote from the dissent.
It went on like that for the rest of the hour, Dex distinguishing nuances in changed fact patterns, never wavering, always answering decisively.
And at the end of the hour, Zigman actually said, "Very good, Mr. Thaler."
It was a first.
I left class feeling jubilant. Dex had prevailed for all of us. The story spread throughout the first-year class, earning him more points with the girls, who had long since determined that he was totally available.
I told Darcy the story as well. She had moved to New York at about the same time I did, only under vastly different circumstances. I was there to become a lawyer; she came without a job, or a plan, or much money. I let her sleep on a futon in my dorm room until she found some roommates—three American Airlines flight attendants looking to squeeze a fourth body into their heavily partitioned studio. She borrowed money from her parents to make the rent while she looked for a job, finally settling on a bartending position at the Monkey Bar. For the first time in our friendship, I was happy with my life in comparison to hers. I was just as poor, but at least I had a plan. Darcy's prospects didn't seem great with only a 2.9 GPA from Indiana University.
"You're so lucky," Darcy would whine as I tried to study.
No, luck is what you have, I'd think. Luck is buying a lottery ticket along with your Yoo-hoo and striking it rich. Nothing about my life is lucky—it's all about hard work, it is all an uphill struggle. But of course, I never said that. Just told her that things would soon turn around for her.
And sure enough, they did. About two