Approaching Negligence Exams

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Approaching Negligence Exams

Postby SwampRat88 » Sun Nov 06, 2011 5:40 pm

Our professor will likely divide our exam into two fact patterns, one for intentional torts and the other for negligence.

I'm feeling good on intentional torts. However, I have severe trouble organizing negligence on exams. Can anyone point me to a flowchart or a rough guideline?


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Re: Approaching Negligence Exams

Postby StyrofoamWar » Sun Nov 06, 2011 6:38 pm

Negligence is a really easy one for teachers to test since it's all grey area and analysis. It's also a really easy one to get a ton of points on by analyzing both ways. Obviously, you'll need to cater this to what your specific professor has instructed you on (ie if there are certain things they want discussed certain ways, or certain things the call of the question states that you should ignore).

If it was me, I'd start by laying out the elements up front.

The elements of a negligence claim are:

1) Duty
2) Breach
3) Actual Cause
4) Proximate Cause
5) Damages
(Your jurisdiction/school organization of these elements may vary. Also, I wouldn't bullet point it out like this on an exam, it's just easier to type up on TLS this way)

In order for a defendant to be liable for a negligence claim, it must first be established that the defendant owed the plaintiff a duty. A duty exists where *insert your class's definition of duty here*. P will argue there is a duty in this case because of ABC facts. D will argue that no duty exists because of XYZ facts. In this case, P is likely successful in establishing the element of duty because *insert reason for conclusion here* / In this case, D is likely successful in establishing there was no duty because *insert conclusion analysis here.

Assuming that P is successful in establishing there was in fact a duty owed to him, P must next establish that a breach of this duty was committed by D. (Other alternative formulation: Even though D is likely successful in establishing that there was not in fact a duty owed, if the court somehow DID find there was a duty, the next argument D will make is that D did not commit a breach). A breach occurs when *insert definition of breach from your class here*. In this case, plaintiff will argue that a breach occurred because XYZ facts happened. D will counter that there was no breach because of ABC facts. Here, P/D likely is successful because *insert reason for conclusion here*.

Continue for each of the other elements.

Then, at the very end, and assuming you have covered affirmative defenses:

Even if the court finds that D was negligent, D may escape liability through one of the following affirmative defenses, such as *insert affirmative defense such as assumption of risk, etc here*. Then go through the exact same analysis, element by element and reach conclusions.

It can't be stressed enough that a law school test is NOT about reaching a so called "right answer", it's absolute 100% about the process of how you get to ANY answer. Demonstrate a clear statement of the law (the rule statements above). Demonstrate that you've analyzed the facts (arguing for both P and D above). And then just throw in a conclusion at the end so there was some point to everything you just went through analyzing, since the professor might give a point for reaching a conclusion.

Negligence is just as rule-based as intentional torts, the rules are just a lot greyer. That's why so many lawyers make a living off negligence claims rather than trespass to chattels claims.

Good luck!

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