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    The motion for summary judgment should be denied. To establish negligence, the plaintiff must prove duty, breach, causation, and damages. While industry custom can inform the standard of care, it does not determine negligence conclusively. Here, the driver's double-parking violated a traffic ordinance, allowing negligence per se to be established if the plaintiff was in the protected class and the harm suffered was of the kind intended to be prevented by the ordinance. The plaintiff satisfies these requirements.

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    The motion for summary judgment should be denied. To establish negligence, the plaintiff must prove duty, breach, causation, and damages. While industry custom can inform the standard of care, it does not determine negligence conclusively. Here, the driver's double-parking violated a traffic ordinance, allowing negligence per se to be established if the plaintiff was in the protected class and the harm suffered was of the kind intended to be prevented by the ordinance. The plaintiff satisfies these requirements.

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    25 views2 pages

    Backup of ESsay Archtect

    Uploaded by

    Stacy Oliveira
    The motion for summary judgment should be denied. To establish negligence, the plaintiff must prove duty, breach, causation, and damages. While industry custom can inform the standard of care, it does not determine negligence conclusively. Here, the driver's double-parking violated a traffic ordinance, allowing negligence per se to be established if the plaintiff was in the protected class and the harm suffered was of the kind intended to be prevented by the ordinance. The plaintiff satisfies these requirements.

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    of 2

    ESSAY ACHITECT

    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.

    How should the court rule on the motion?

    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.

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