Help my Negligence Attack Plan - Torts Test Forum

[Extension_Cord]

I have a negligence written Test on Monday am, its worth 50% of my total grade. Does anyone have any tips that I can include to set myself apart? Below is a model, if there are any key words or anything handy to include I'd be greatful to hear them. I will quote parts of palgraf about the foreseeability of the plaintiff. Where should I include stuff about foreseeability? The breach analysis? Do I need to pick a side or discuss both sides fully and then make a statement whether there was negligence? Does it need to be a firm answer or is a most likely safer? Should I mention Res Ipsa in the analsys in passing? LOL, maybe I shouldn't throw the kitchen sink at my professor, haha.

Issue: Was so-and-so negligent when so-and-so did...

Rule: Negligence occurs when a person breaches a duty they have that results in damages.
1. if theres a statute I'd discuss it here and determine wether its applicable, mentioning the three presumptions of a breach of statute, then after analysis I would say "if the court doesn't find the statute applicable, then a breach analysis will be required.
2. Duty is determined through a breach-analysis where the burden of doing something different is balanced against the probability of the injury and extent of the injury. In the instant case .... (application of breach analysis)... Maybe mention circumstantial evidence to show defendant had notice of a hazard if necessary, is there anywhere else to mention circumstantial evidence than to establish a duty?)
3. Causation (Causation-in-fact (but-for or substantial factor test application, discuss joint tortfeasors & intervening causes if substantial factor test) and Legal Causation application citing palsgraf).
4. Damages (I dont know what goes here, we didn't read these cases and jumped straight into privacy issues in class. Any help?
5. Defenses (contributory negligence / comparative negligence / assumption of risk analysis).

Conclusion: Is this just a couple sentences wrapping it up?

[jackattack17]

i'll take a shot.

first, it's palSgraf, you know that right?
and as for palsgraf, both the majority and the dissent are crucial to the analysis, since both are followed around the country, depending on how far courts want to extend liability, policy-wise. compare the retrospective analysis of foreseeability (andrews) and cardozo's prospective analysis, because the first broadens the scope of liability. don't discount andrews's opinion, just b/c it's a dissent.

i wouldnt mention RIL unless a strong case for it could be made; that is, you have harm to P and don't know why, but D was probably negligent or whatever.

damages is fairly straightforward: were there damages, and were they foreseeable?

hope that helps a little. and having two exams is awesome, wish i had that haha.

[Extension_Cord]

i'll take a shot.

first, it's palSgraf, you know that right?
and as for palsgraf, both the majority and the dissent are crucial to the analysis, since both are followed around the country, depending on how far courts want to extend liability, policy-wise. compare the retrospective analysis of foreseeability (andrews) and cardozo's prospective analysis, because the first broadens the scope of liability. don't discount andrews's opinion, just b/c it's a dissent.

i wouldnt mention RIL unless a strong case for it could be made; that is, you have harm to P and don't know why, but D was probably negligent or whatever.

damages is fairly straightforward: were there damages, and were they foreseeable?

hope that helps a little. and having two exams is awesome, wish i had that haha.

We had a multiple choice exam on Intentional torts defenses in the first month of class and a multiple choice negligence exam a couple weeks ago that accounted for half our score. We lucked out.

I will have to go back and reread Andrews, I totally discounted it. I recall hearing on the Sum & Substance Audio CDs that Andrews is the one who went with proximate cause but Cardozo went with the whole foreseeability of the plaintiff thing, I thought they were both proximate cause? Its possible I just dozed off when Fintz spoke of it...

And thanks for your help!

[thegrayman]

I remember Palsgraf like this:

Anyone Andrews: d's duty of care is owed to anyone injured as a result of d's breach of duty, jury decides foreseeability as a matter of proximate cause

Cardozone - there is a duty of care owed only to a "foreseeable p" or class of persons in the "zone of danger," judge decides foreseeability

[zomginternets]

Don't mix up duty and breach--discuss them separately. Discuss policy factors for duty first. Then discuss breach (hand formula)--include any discussion about breaching statutes (i.e. negligence per se) in the breach discussion.

[kalvano]

You might get a few bonus points for pointing out the difference between someone acting negligently and the actual tort of negligence.

Also, minor point, but I would go over defenses before damages. That takes a while because you have to say "So and so will claim the defense of, but such and such can overcome that by...". Repeat for each defense.

[Extension_Cord]

Don't mix up duty and breach--discuss them separately. Discuss policy factors for duty first. Then discuss breach (hand formula)--include any discussion about breaching statutes (i.e. negligence per se) in the breach discussion.

what are the policy factors of duty?

[englawyer]

Don't mix up duty and breach--discuss them separately. Discuss policy factors for duty first. Then discuss breach (hand formula)--include any discussion about breaching statutes (i.e. negligence per se) in the breach discussion.

+1 agree w/ this. analyze the four parts separately

Duty -> Breach -> Causation -> Damages

Duty: Act/Omission distinction. If omission, special relationship analysis

Breach: Hand formula, custom (ie doctor), special cases. also negligence per se (the statute analysis you mentioned).

Causation: but-for/substantial factor, proximate cause (these are two separate analyses)

[zomginternets]

Don't mix up duty and breach--discuss them separately. Discuss policy factors for duty first. Then discuss breach (hand formula)--include any discussion about breaching statutes (i.e. negligence per se) in the breach discussion.

what are the policy factors of duty?

(i) Foreseeability of harm to P
(ii) Degree of certainty of P’s injury
(iii) Closeness of connection between P’s injury and D’s conduct
(iv) Moral blame
(v) Deterrence
(vi) Burden to D and community
(vii) Loss spreading
(viii) Other—free speech, legislative considerations, etc.

The duty discussion involves a mix of breach/causation considerations, but it is a separate element that needs to be analyzed separately.

Edit: My bad, negligence per se is both a duty and a breach issue. Whether the statute imposes a duty on D should be analyzed before/after duty policy factors. Whether breach of the statute is conclusive evidence of negligence or merely just probative evidence of negligence is discussed under breach.

[Michael_Vick]

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[LAWYER2]

Bump for reference.




Anyone care to share their Negligence attack plan

[NYC2014]

I got an A+ in Torts.

Duty Breach Causation Damages.

There can be a duty whether or not there is a breach, so you need to separate them in your outline. There is a general duty to act reasonably no matter what. The word reasonable does a ton of work, and is very fact specific. You need to know when to depart from the default rule, i.e. for professionals.

A breach is by failing to live up to the duty you've selected. So if the duty is to act as a reasonable person under like circumstances, and the person in your hypo doesn't, he has breached.

Causation is so simple I want to punch my teacher in the face for wasting all my damn time. It can be boiled down to two tests:
-For factual causation, ask whether the outcome would have happened if not for the defendant's breach.
-For proximate causation, ask why a person shouldn't do whatever the defendant's breaching action was (ask what it risks). If that is what happens, it is foreseeable, and there is proximate causation.
You need both proximate and factual causation for the plaintiff to recover.

Lastly, damages. IDK, there are some damages rules or whatnot, my teacher didn't focus on it. The other three are where the action happens. Good luck.

[LAWYER2]

I got an A+ in Torts.

Duty Breach Causation Damages.

There can be a duty whether or not there is a breach, so you need to separate them in your outline. There is a general duty to act reasonably no matter what. The word reasonable does a ton of work, and is very fact specific. You need to know when to depart from the default rule, i.e. for professionals.

A breach is by failing to live up to the duty you've selected. So if the duty is to act as a reasonable person under like circumstances, and the person in your hypo doesn't, he has breached.

Causation is so simple I want to punch my teacher in the face for wasting all my damn time. It can be boiled down to two tests:
-For factual causation, ask whether the outcome would have happened if not for the defendant's breach.
-For proximate causation, ask why a person shouldn't do whatever the defendant's breaching action was (ask what it risks). If that is what happens, it is foreseeable, and there is proximate causation.
You need both proximate and factual causation for the plaintiff to recover.

Lastly, damages. IDK, there are some damages rules or whatnot, my teacher didn't focus on it. The other three are where the action happens. Good luck.

Very well put! Our professor made things soooo much more complicated and compartmentalized than necessary. Thanks NYC!

[Geist13]

You shouldn't be including damages if you skipped over those cases. It's a very bad idea to get into stuff you didn't cover in class.