Question about how to approach a Negligence question (Torts)

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Question about how to approach a Negligence question (Torts)

Postby windowshopper » Mon Dec 13, 2010 11:50 pm

This is probably a stupid question. I know I should have asked my prof before, but it's too late now.

If I have a long fact pattern addressing only negligence, not intentional torts, should I discuss (even shortly) each element? For example, should I discuss the issue of duty in a cursory manner when the real issue is obviously a causation question?

If someone could just give me a general strategy about how to approach a negligence question, I'd really appreciate it.

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Re: Question about how to approach a Negligence question (Torts)

Postby grrrstick » Mon Dec 13, 2010 11:54 pm

You probably want to hit all the elements. Usually if its a longer hypo on just negligence, none of the "big" elements are 100% straightforward (duty, breach, cause, defenses, damages). I would worry if I was writing "Proximate cause is easily established because the injury is obviously foreseeable" unless the prof. has said that specifically in the hypo.


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Re: Question about how to approach a Negligence question (Torts)

Postby StyrofoamWar » Mon Dec 13, 2010 11:57 pm

If there is any possibility of it being colorable, I would address it.

Start with the worst possible answer. Explain it. Explain why it sucks. Move on to next best answer. Repeat, explaining why it sucks a little less. Conclude with best answer. You show you know all the elements of neg that are even potentially relevant, you show why the ones that are not relevant do not apply to the case at hand, and conclude with the most convincing argument. Full coverage + added strength to your argument by concluding on a high note.


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Re: Question about how to approach a Negligence question (Torts)

Postby random5483 » Tue Dec 14, 2010 12:04 am

My basic approach for a pure negligence question.

1. Duty: Did the plaintiff owe a duty of care? Does a specific affirmative obligation to act exist? A duty to control and protect? If none, use the Cardozo approach (duty owed to all reasonably foreseeably plaintiffs in the zone of danger). If you have time, briefly bring up the Andrews approach (duty to the world at large).

2. Breach: What was the applicable standard of care? Reasonable person standard? Reasonable child standard? Reasonable professional standard? Was that standard breached? Used the hand formula to discuss why the breach did or did not occur (B<PL). Alternatively, use the foreseeable danger or community expectations test (I would recommend you use them as alternate tests, but stick the the hand formula as a primary test). Remember to discuss specifics (ex. if medical malpractice bring up the similar/same locality rules v. national standard).

3. Causation: Actual/Proximate Cause. Discuss the various tests. Foreseeability? Harm within the risk? Intervening/Superseding causes? Remember that generally, the plaintiff must be foreseeable. Remember that generally the manner/extent of harm does not have to be foreseeable if the plaintiff/type of harm is foreseeable. However, there is no exact rule to this, you have to weigh all the facts.

4. Damages: Was there any damage? Smallest analysis. You could discuss Joint and Several Liability or Eggshell Plaintiff Rule here (or discuss them under causation).

Remember to focus on whatever your professor taught you, but the above is a basic outline. Hope it helps.

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