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Backup of ESsay Archtect
Backup of ESsay Archtect
We encourage you to use issue Ts when you are writing answers on the bar exam. An issue T is
an essay writing aid. When you recognize something that is in issue in an exam question, draw a
large T on scratch paper or beneath the text of the question. On the top of the T, write a
shorthand name for the issue. On the left side of the T, note the requirements, elements, or
prima facie case related to the issue (you should recall the law from studying). On the right side
of the T, write in facts that support or refute each requirement, element, etc.
Study hint: If you are shaky on the law, “spare” facts (i.e., facts that are not related to the
elements you do remember) can help jar your memory of any missing elements. On the other
hand, missing facts are a good hint that an argument will not succeed or is not really in issue.
QUESTION
Three months ago, a furniture store’s delivery driver delivered furniture to a longtime
customer. In violation of a local traffic ordinance, the driver double-parked the delivery van in
front of the customer’s house. A few minutes later, while the driver was in the house, a car
drove around the delivery van into the oncoming lane. The car was struck by a garbage truck
that was hidden from view by the delivery van, and a passenger in the car was seriously injured.
The passenger has brought a negligence action against the store to recover damages for injuries
resulting from the driver’s conduct. Pretrial discovery has revealed that delivery vans routinely
double-park when parking is not available; survey evidence suggests that, in urban areas like
this one, 80% of deliveries are made while the delivery van is double-parked.
The store moves for summary judgment, setting forth the above, undisputed facts and arguing
that the driver could not be found liable for the passenger’s injuries.
ANSWER
The driver may be found negligent on these facts, so the motion for summary judgment should
not be granted. The key issue here is whether following the industry custom of double-parking
negates a finding of negligence.
A defendant will be liable in a negligence cause of action if the plaintiff can prove that the
defendant owed the plaintiff a duty, the defendant breached that duty, the defendant’s actions
were the actual and proximate cause of the plaintiff’s injuries, and the plaintiff incurred
damages.
At a minimum, a person owes a duty to others to act as an ordinary, prudent person would act
under like circumstances. However, where the conduct in question is in violation of a statute,
proof of the violation will constitute negligence per se, conclusively establishing the duty owed
and the breach of duty, if the plaintiff can establish three things: (i) a clearly stated specific
duty, (ii) the plaintiff was within the class of people intended to be protected by the statute,
and (iii) the harm suffered by the plaintiff was the type of harm the statute was designed to
prevent. Absent an applicable statutory standard, industry custom can provide some evidence
of whether a duty is breached, but such evidence is not conclusive.
This issue here is whether the customer can you a state statute to prove negligence per se by showing the clerk violated the
statute
Under a negligence per se claim showing a violation of the statute establishes a conclusive presumption that a duty was
owed to the plaintiff and that it was breached. A state statute providing “No person driving or in charge of a motor vehicle
shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the
ignition, setting the brake thereon and, when standing upon any perceptible grade, turning the front wheels to the curb or
side of the highway.” is in place to prevent injuries to bystanders. The statute will replace the general common law duty
with a specific duty. For the plaintiff to satisfy this specific standard he must show that 1) he was within the class of
people intended to be protected by the statute and 2) that the harm he suffered was a type of harm that statute was designed
to prevent.
Here, the plaintiff can use the specific statutory standard in place of the general standard as the statute in place would
apply to the clerk and would be a negligence per se claim. As the statute was violated the presumption that a duty was
owed and a breach occurred is satisfied.
In a claim for negligence per se, the plaintiff must show that he was within the class of people intended to be protected by
the statute and that harm suffered was the type of harm the statute was designed to prevent.
Here, it is clearly obvious that the state statute was designed to prevent injuries to innocent bystanders due to carbon
monoxide being highly poisonous and hard to detect likely causing serious injury or death. Although not stated but a
statute is intended to prevent all harm to innocent bystanders.The first part of the test can be satisfied as the customer is
within the protected class of persons that the statute was intended to protect as he was an innocent bystander who might
have not noticed the carbon menoxide. in addition it will also satisfy the second part of the test as the reason for the state
statute is to prevent injury or death from leaving a car on and poisoning bystanders and the customer.
In order to satisfy a prima facie case in negligence per se and plaintiff must still satisfy the elements of causation and
damages to a successful claim.
Here, causation is satisfied because but for the clerks violation of the statute the customer would not be injured. The
customer suffered serious injuries due to the clerk leaving his car running and unattended.
Therefore, the clerk can establish a negligence per se claim as the prima facie cases of negligence were successfully
established.