Negligence Per Se Essays

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  • California Bar Exam Essays In-Depth: How to Avoid Common Mistakes with Negligence on Torts Essays
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California Bar Exam Essays In-Depth: How to Avoid Common Mistakes with Negligence on Torts Essays


Our Essays In-Depth feature includes excerpts from the information provided in our writing programs (e.g., our Ultimate program).

The Potential Importance of Negligence on the California Bar Exam

Before we dive into common mistakes with Negligence on Torts essays, it's important to step back and recognize the overall potential importance of Negligence on the entirety of the California bar exam. As a given, nearly 9% of the entire MBE includes questions on Negligence (half of all Torts questions involve Negligence). For the essays, when a Torts essay involving Negligence appears on the essay portion of the exam, Negligence and Negligence related issues (e.g., defenses or multiple, additional claims of Negligence) typically constitute over 80% of the individual essay (see, e.g., July 2002, Question 5; February 2005, Question 1; July 2006, Question 1; February 2008, Question 1; July 2010, Question 1; February 2011, Question 4). Eighty percent of an individual essay equates to 8% of the entire written portion of the California bar exam. Considering the MBE and written portion of the exam combined, this means Negligence could account for approximately 17% of the total possible raw points on the entire exam when a Torts Negligence essay is tested. Clearly, it is imperative to learn and practice how to avoid common Negligence mistakes on Torts essays in order to be adequately prepared for the California bar exam.

Common Negligence Mistakes to Avoid on Torts Essays and How to Avoid Them

In our experience helping others prepare for the California bar exam essays, a number of common, recurring problems arise for the issue of Negligence on a Torts essay. Considering Negligence is the most frequently-tested Torts claim, it is important to consider these mistakes and, more importantly, how to avoid them.

Mistake 1. Truncating the Duty Discussion; Avoid by Addressing the Two Aspects to Negligence Duty

As you hopefully know from first-year Torts, Duty is the initial element in a prima facie case of Negligence (duty, breach, actual cause, proximate cause, and damages). A common mistake with Duty is the failure to make the fundamental recognition that the element of Duty is actually made up of two separate but related parts, which include: 1) addressing the question of whether a Duty is owed and 2) determining the standard of care for the Duty owed.

The first part of any Duty analysis should address the primary question of whether a Duty is owed at all. Absent any special relationships that impose a Duty (e.g., parent/child), the legal standards to make this determination are the Cardozo and Andrews viewpoints on the matter of duty (as taken from the seminal Palsgraf case). The Cardozo standard espouses a duty is owed to foreseeable individuals in the zone of danger. Whereas, the Andrews standard espouses a duty is owed to all. After applying these standards, one may conclude if a Duty is actually owed to the plaintiff.

The second part of any Duty analysis should then address the standard of care that the defendant owed the plaintiff. Absent any special duty (e.g., invitee, licensee, etc...), the ordinary standard of care is that of a reasonably prudent person in like or similar circumstances. That is, the defendant owes a duty to the plaintiff to act as a reasonably prudent person in like or similar circumstances.

Too often, we see individuals omit one of these two parts of Duty for their treatment of the issue on a Torts essay.

Mistake 2. Premature Discussion of Breach; Avoid by Clearly Delineating the Issues of Duty and Breach

Another Negligence mistake encountered by individuals is prematurely including Breach analysis in the Duty analysis. In this case, an individual will identify the issue for discussion as Duty but then proceed to explain how the Duty was breached without first explaining whether a duty is owed or identifying the standard of care. Essentially, this mistake leads an individual to omit the analysis of Duty altogether. To avoid this same mistake, reserve the analysis for whether the Duty was upheld or not for the element of Breach and limit your Duty analysis to the two parts cited above: 1) whether a duty is owed and 2) the standard of care.

Mistake 3. Ignoring/Omitting Breach Substitutes; Avoid by Always Considering Negligence Per Se and Res Ipsa Loquitur

Remember, the "Breach substitutes" of Negligence Per Se and Res Ipsa Loquitur may be applicable to an individual Negligence discussion. Too often, individuals will simply ignore or omit such discussions when relevant. To avoid such omission, anytime you are considering Breach force yourself to evaluate whether Negligence Per Se and/or Res Ipsa Loquitur are also fairly raised by the facts of the question.

Mistake 4. Failing to Consider Negligence as an Alternative, Additional Claim; Avoid by Always Considering the Possibility of a Negligence Claim

Remember, unless the call of the question limits your response to specific claims (e.g., intentional torts only), then you should always consider the possibility of Negligence as an additional, alternative claim. Common examples include Negligence Products Liability in addition to Strict Products Liability or Negligence in addition to other Strict Liability claims (e.g., abnormally dangerous activities, the rule of Rylands v. Fletcher, or domestic/wild animals). Far too often, we see individuals ignore and omit a plausible, alternative Negligence claims entirely.

Please keep in mind, the best way to avoid these Common Negligence essay mistakes is via essay practice. Don't wait until the exam to discover you commit these or other common essay mistakes.

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The following material illustrates the process of outlining and test taking.

In using this material, you should first study the negligence outline in Part 1. The outline is not intended to be a thorough summary of the law in the area of negligence. It is to be used in conjunction with the sample exam and sample answer to show the principles talked about in this book.

After studying the outline, read the question. Next, attempt to outline an answer. Then compare your outline with the one in Part 3. Finally, try writing an answer. A sample answer is contained in Part 4.

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Part 1 - Sample Outline on Negligence

  1. Negligence1
    1. Issue / Scope
      1. Definition of negligence and component parts
      2. What triggers negligence?
      3. Defenses
    2. Rule
      1. Common Law: A prima facie2 case of negligence exists IF the following conditions are proven:
        1. Defendant had a duty of reasonable care.
        2. Defendant breached that duty.
        3. The breach was the actual and proximate cause of the plaintiff's injuries.
        4. Some sort of damage occurred to the plaintiff or her property.
      2. Duty of reasonable care definition
        1. Every person has the duty to exercise the care
        2. of a reasonable and prudent person
        3. in the same or similar circumstances.
      3. Breach of duty
        1. Breach is a question of fact that must be proven by showing:
        2. Actual and Proximate cause
          1. Actual Cause exists IF
            1. Proximate Cause (or Legal Causation) limits liability to those harms that were:
            2. Defenses
              1. Contributory Negligence
                1. Assumption of risk doctrine
                  1. Emergency Doctrine
                    1. Custom
                  2. Analysis
                    1. Duty of Reasonable Care
                      1. Reasonable person standard is judged objectively according to factors:
                            1. Breach of Duty - Types of proof
                              1. Violation of law is proof of breach.
                              2. Res ipsa loquitur3
                                1. Was harm foreseeable?
                              3. Direct and Proximate Causation
                                1. Direct Cause
                                  1. Proximate Cause
                                2. Cases
                                  1. Wilson v. Silbert. Emergency doctrine: In a drive-through bank line, the car in front of defendant start backing up quickly, so defendant backs up as well without looking. Sudden emergency doctrine lowers standard of reasonable care. Should have looked but emergency avoided a harm to himself.
                                  2. US v. Carroll Towing. Breach illustration. Judge Learned Hand. Barge breaks loose of its moorings without watchman on board. Barge sinks with cargo. Barge company is liable for cargo because the burden of taking precautions - having watchman on board - was negligible compared with probability of harm of a barge breaking loose of its moorings.
                                  3. T.J. Hooper. Custom defense. Tugboat ran into a storm and lost its cargo. Tugboat didn't carry a radio on board so didn't get the weather reports. Tugboat owner is not liable for negligence in not carrying a radio because it's the 1930s and the custom was not yet established to always carry a radio on boat.
                                  4. Palsgraf v. Long Island RR. Proximate Cause. Judge Cardoza. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.

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                              Part 2 - Sample Exam4

                              The following example is meant to illustrate a typical question and suggest an approach on how you might outline the relevant issues and facts. Unless you have already taken torts, you probably won't immediately recognize why some of the facts are relevant. What's important to see here, however, is not the law, but to illustrate that once you know the law, you should note the relevant facts in order to spot the issues.

                              David is driving 25 MPH in 25 MPH zone down a four lane street where there are children playing. One nine-year-old child, Kevin, runs into the street chasing a soccer ball. David, without looking over his shoulder, swerves into the other lane to avoid Kevin and in the process he hits a car, driven by Peter, that was speeding past him in the left-hand lane going in the same direction.

                              Peter loses control of his car, hits a telephone pole and is seriously and permanently injured. The telephone pole, owned by the local phone company TeleCo, easily snaps into two pieces and hits Kevin, who is still in the street, knocking him unconscious and resulting in permanent injuries.

                              TeleCo never did any testing of its poles to establish how easily the poles broke. The only factor used in manufacturing the poles was cost. The poles were made of low quality trees and were not treated in any significant manner except for a coating of tar. No reinforcement was used on the poles.

                              What are the various liabilities and rights of the parties involved?

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                              Part 3 - Sample Outline to Answer

                              What follows is a sample outline to the problem discussed above. This outline has far more words in it than you would want to use in an actual exam. This detail just illustrates the framework of an answer to make it comprehensible to you. You would want to abbreviate words and otherwise use a lot of shortcuts in an actual exam in order to save time. Once you understand the analytical framework, an actual outline of the first issue might look more like this:


                              EXAM OUTLINE

                              Who are the potential parties?
                              Under what legal theory can they bring an action?
                              What are the defenses?
                              What are the significant facts proving the theory or defense?
                              What are the damages if defendant is held liable?

                              Peter, Kevin v. David

                              Legal Theory:Negligence
                              Pro: Swerving into lane
                              Pro: Kids playing signals duty to slow down.
                              Con: David was driving speed limit.
                              Defense:Emergency Doctrine
                              Kid could have been killed.
                              Defense:Contributory Negligence
                              Peter was going over speed limit.
                              Defense:Injury by phone pole was not foreseeable given attempt to avoid Kevin.
                              Damages:Personal injury
                              Car repair
                              Conclusion:Probably not liable

                              Kevin, David v. Peter

                              Legal Theory:Negligence
                              Defense - David:Contributory Negligence
                              David should have looked before swerving.
                              Defense - Kevin:Contributory negligence by running into street.
                              Damages:Personal injury
                              Conclusion:Some liability since negligent per se.

                              Kevin v. TeleCo

                              Legal Theory:Negligence
                              Duty arose since foreseeable and no action to prevent harm.
                              Defense:Not foreseeable
                              Damages:Personal injury
                              Conclusion:Liable.

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                              Part 4 - The Written Answer

                              The injured individuals can seek damages based on a theory of negligence. I will examine the potential liability of each party in turn. The prima facie case for negligence is established by showing a duty of reasonable care, breach of the duty, actual and proximate cause and damage.

                              Peter v. David

                              Although David may have breached a duty in not looking when changing lanes, he has a defense in the emergency doctrine. To prove negligence, Peter has the burden to prove that David had a duty to drive more carefully. One theory would be that David should drive slower than the speed limit when kids were present. Evidence of breaking the law is automatically considered a breach of a duty, but not breaking the law doesn't necessarily establish that a breach didn't occur. All of the facts and circumstances must be considered. Since 25 MPH is a standard speed limit for residential areas where kids normally play, I don't think that David had a duty to drive slower.

                              David, however, probably breached a duty of care by not looking before he changed lanes. A reasonable and prudent person would naturally look before changing lanes. Here, however, David can claim two defenses. First, he can claim contributory negligence since Peter was speeding. (See below for an analysis of Peter's liability.) Second, David can claim the emergency doctrine. Since his swerving into the lane avoided an accident with Kevin, he was justified in making the split-second decision to swerve. I think that under the duty of reasonable care analysis, David acted with the care of an ordinary and prudent person under the circumstances of an emergency. Therefore, David will probably not be found negligent in regard to Peter's claim. Even if he is found negligent, David's liability is limited if Peter is found to be liable for contributory negligence.

                              Kevin v. David

                              As to Kevin's claim of negligence against David, it is arguable that David's action was the cause of the injury that occurred to Kevin. Under the "but-for" standard of review, if he hadn't swerved into the other lane, he would not have sent Peter's car crashing into the phone pole. However, Kevin's claim against David probably loses on the issue of proximate cause. Proximate cause limits the liability of David to those risks that were foreseeable. Here, I don't think that a telephone pole snapping in half and falling on top of a kid is a likely result from swerving into another lane in order to avoid the kid in the first place. It is as improbable a result as that in Palsgraf. David is probably not liable for negligence in regard to Kevin's injuries.

                              Kevin, David v. Peter

                              Both Kevin and David can state a claim against Peter for their damages as a result of Peter's negligence in driving over the speed limit. Peter is liable under the theory of negligence per se since he was over the speed limit. Breaking the law - such as posted speed limits - creates a rebuttable presumption of negligence and doesn't require further analysis. Peter can rebut the presumption of negligence by showing it was the custom to speed on that street; however, the fact that children were present would go to show that Peter had a duty of care to ignore the custom and slow down under those circumstances.

                              Peter can also argue contributory negligence against both David for swerving and Kevin for running into the street. While David was not judged to be negligent for, I don't think his claim for damages to his car will survive. Peter's claim of contributory negligence against David is valid since David had a duty to look before changing lanes. Although the emergency doctrine relieves David of liability, it does not confer liability on Peter. David, or his insurance company, will probably have to pay damages on David's car.

                              Kevin will be judged by the standard of what a reasonable and prudent nine year old would do when playing games in his own neighborhood. The neighborhood represents safety in Kevin's mind, thus an exuberant pre-teen might feel safe enough to run in the street. Even so, most kids are taught at an early age to look both ways before crossing the street. I think it is likely that Kevin, or his parents, will bear some responsibility for Kevin's injuries since he did not belong in the street.

                              Peter's strongest defense against Kevin's claim is to argue - as David did above - that the injuries arising form the telephone pole were not foreseeable and therefore the damage is too attenuated for Peter to be held liable. Here, it is less clear. The casual connection is closer than it was with David. I think that it is foreseeable that when someone is speeding they might lose control and damage would result from that loss of control. While the pole snapping was not foreseeable, the risk of some type of harm coming about was foreseeable. It is not necessary to show that a specific harm was foreseeable as it is that some harm was foreseeable. I think Peter will be liable for some measure of Kevin's damages.

                              Kevin v. TeleCo

                              Although it may not have been foreseeable for this accident to happen, I think that TeleCo is probably liable to Kevin for damages. Here, TeleCo was under a duty of reasonable care since it knew that its telephone poles would be placed along the sides of roads. It was foreseeable that a car might hit a pole with sufficient force as to knock the pole down. Since the poles are commonly placed in neighborhoods, it is reasonable to conclude that a pole might fall on someone.

                              Despite its duty to protect against potential harm, TeleCo did not do any testing to determine the danger involved in falling poles. Furthermore, it did nothing to mitigate the danger by seeking to reinforce the pole with metal strips, to sink poles deeper in the ground or buy a harder type of wood. The only factor that TeleCo thought was relevant was keeping its costs down. Consequently, I think that TeleCo's failure to seek alternatives was a breach of its duty of care.

                              Under a causation analysis, the breach was both a direct and proximate cause of Kevin's injuries. But-for TeleCo's breach, Kevin's injuries would not have occurred. Furthermore, it is foreseeable in a car accident where a pole falls, that an innocent bystander will get hurt. Since Kevin has shown damages, I think that TeleCo will probably be found negligent and liable for damages.

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