A Negligence Outline - Thoughts and Changes
I received a Negligence outline from a first-year student, and this post will provide some comments on the outline. I will share with you a few pages of the outline in its original form, then I will share my changes to the outline, and tell you: (1) what I changed in the outline, (2) why I made certain changes, and (3) what I would add to the outline, and why.
General comments: The outline that I received was comprehensive and easy to understand. The other initial comment I can make on the outline is that it is a document that someone else could understand - - another person who is not attending law school and does not know anything regarding the law can follow this student's outline. It is a good thing that someone else, who is not an attorney can follow your outline. You don't have to strive for this. You do, however, want to know that someone else could follow your outline, if necessary.
A Legend. I believe that every outline should include a reference to abbreviations that will be referred to in the outline. I also suggest that the student place the legend in the top right hand corner of her exam booklet. This prevents you from writing out full names of actors, the legal designation of parties (plaintiff & defendant, appellant & appellee, petitioner & respondent). When you have to write out the same information over and over again, it eats up your analysis time. That is time you do not have on an exam. Okay. So, let’s look at an example of a legend.
Legend
P-------------Plaintiff.
D------------ Defendant
CL ---------- Common Law
F -------------Factor
N------------- Note
GR----------- General Rule
XC----------- Exception
XT----------- Extension
P------------- Policy
The student whose outline I am reviewing included designations of PTF for Plaintiff and DFT for Defendant. I think those designations are too long. I feel comfortable using only P and D as a reference for Plaintiff and Defendant. If I need to refer to other Plaintiffs or Defendants in an answer, then I will add P1 and D1, etc., accordingly. One thing that you should decide prior to exam time is how you will approach the exam procedurally and substantively. That is another post. So know that this is an example of a Legend for your professors to refer to when you write the exam. You are not writing anything they haven’t seen before. I would be surprised to hear faculty tell me that they have never encountered some reference to a few abbreviations in a student’s exam booklet. You should feel free to use your own designations, or a symbol that your professor has used throughout the semester to discuss a particular issue, sub-issue, or set of circumstances.
What you will find below are two outlines: (i) a partial Negligence outline from Mr. David; and (ii) a rendition of an outline, discussing the same information, from me.
The Changes:
(1) Do Not Be Repetitive: I did not repeat anything more than one time. If it was discussed in the outline more than one time, I synthesized the two thoughts and placed the information in one sentence. Even before including the information in a single sentence, I surveyed what I had, first, and determined if I was actually (i) saying the same thing twice, or (ii) saying anything important at all.
(2) Changed Phrases To Sentences: Write an outline in the same manner in which you would speak to someone about a topic or a piece of information. Don't include "just words" in the sentence because you are in a hurry, and don't be over-inclusive. Write the sentence just like you would if you were writing the sentence on the exam. Once you use this technique over and over again, your sentences will be second nature (in the the outline and on the exam).
(3) Began Sentences With a Noun or Pronoun: A student promotes active writing when her sentences are direct, to the point, and include subject/verb agreement, followed by some object. A sentence with action is, by far, the easiest sentence to read, and to interpret. It is also a faster sentence to write, particularly on a handwritten exam, when you know that you must use your time judiciously.
(4) Kept Sentences Extremely Simple: Contrary to popular belief, an outline is not an Executive Order, a Treaty, or, Treatise, for that matter. Sentences transferred from an outline to the exam booklet don't have to be Pulitzer Prize winning, $10.00 word sentences. Simple sentences with simple concepts actually do work on a final exam.
(5) Special Categories: Often, an element will have a number of sub-categories. For example, there are many different "duties" for different groups of people, in Negligence. The duty that is highlighted on this post today is the duty to rescue. When creating a category and a set of rules for the Duty To Rescue, your goals is to include the words and terms of art that properly describe the duty to rescue and any extensions, or exceptions to the general rule. Look at the notes below in Mr. David's outline, then look to see how I have changed the format, the words, and the sentence structure. The sentence structure is appropriate. I do not, however, use many words to describe duty, and I don't use many words to describe whether or not a person has a duty to rescue. However, you will be able to detect immediately, the rules (guidelines) governing one's duty (or, lack therof) to rescue.
(6) Place Policy Considerations, Last: Use a P in your legend as a category for policy considerations. Now, listen (read) carefully. Most of every reason that you provide for an element of the law is or should be considered policy. Make certain that you separate the rule of law from a policy consideration. A policy consideration is the reason why the law was created. There may be tons of reasons why the law is the law, but generally, there is only one rule of law, usually followed by exceptions of the law or extensions of the law. So, return to your outlines. All of the many reasons that you have written into the outline, near the rule of law, are just policy considerations.
Yes, you may actually use some policy in the first-year courses, but policy is not the sole, or even the main basis for your answer. Your answer is generally based on a specific rule of law. So, look through these two outlines. You will see a lot of reasons why the law is the law in the first outline. In the second outline, I have taken a lot of those reasons out of the outline. You do not have to; again, you can place policy considerations at the end of a category or an issue. It can serve to just remind you of the reasons, or you may find yourself battling a policy concern on an exam. Policy is useful, but you must be careful not to cloud the general rule, the exceptions to that rule, or the extension of that rule, with policy. Policy is not the law. It drives the direction of the law, but it is not the law.
(7) Describe The Exact Facts & Law That Make Up The Holding: I just read a 130 page Con. Law II outline. I can guarantee you that I would not remember that document and I am not trying to remember it. An outline is not a book; it is document that highlights the relevant law and cases that support the law for the subject for which you are studying. It is incumbent upon you to write a document that you can learn in a relatively small period of time, that is not a memoir. Thus, look for the very basic and exact facts that mesh (or, control) the holding.
(8) Now, I want you to compare the two components of this outline, and try to look at how I shortened the outline, but managed to keep the essence of it (eg., the law & policy) as part of our learning tools.
Please write with your questions. Again, the first outline is from Mr. David's Negligence class. The second outline is the document I prepared where I took information from Mr. David's outline and made a shorter, outline with less material.
Let me know if you have any questions. Thank you.
(A) Mr. David's Negligence Exam Outline:
(Duty)
I. Negligence Elements:
a. To recover in a negligence action, pft must prove each element by a preponderance of the evidence (i.e., by more than 50%).
b. P must prove
c. Simplified Elements
(1) A duty of reasonable care
(2) Breach of that duty
(3) Causation (both actual & proximate)
(4) Resulting damaged
d. Expanded Elements
(1) Duty: that there is a legally recognized relationship between dft & pft
(2) Standard of Care: relationship designates a legal measure of appropriate conduct that dft must comport to
(3) Breach: that dft breached the duty owed to pft bt falling below the required standard of care
(4) Actual Cause: that there is a causal nexus between dft’s breach of duty & the injury suffered by ptf
(5) Proximate Cause: that there are no policy reasons to exculpate dft from liability notwithstanding the fact that dft breached a duty owed to ptf & that this breach caused ptf’s harm – proximate cause or legal cause; &
(6) DAMAGES: that ptf suffered a legally cognizable injury.
II. Duty
a. Intro: Duty focuses on the legal relationship between the parties – whether law obligates dft to act or not in certain ways vis-à-vis ptf. As Q of law, duty issues are determined by judges not juries. Norm, law imposes upon everyone a duty to use due care whenever he is engaging in any conduct which creates a risk of harm to others. As gen proposition, there is an obligation in law to avoid acting in manner that creates foreseeable risks of harm to foreseeable ptfs. In vast maj of tort cases, duty issue presents no prob whatsoever. However, the debate about who is a foreseeable ptf for purposes of duty has engendered serious debate.
i. Pointer: Duty is rarely key issue if dft causes the ptf personal injury or prop damage. Conversely, duty is usually a major issue where: ptf suffers harm other than personal injury or prop damage, where the dft is a land possessor or a gov entity, or where ptf is basing claim on the dft’s failure to intervene for ptf’s benefit. Duty issues may also arise where it is unforeseeable that ptf would have been inured by the dft’s conduct.
b. The Unforeseeable Ptf Prob
i. Palsgraf v.Long Island Railroad – railroad employee tried to help passenger to board moving train & dislodged package from passenger’s arms. Package had fireworks that caused scales to drop 30 ft away which fell on Mrs. Palsgraf. While employee was negligent, the debate was over whether there was negligence towards Mrs. Palsgraf.
I received a Negligence outline from a first-year student, and this post will provide some comments on the outline. I will share with you a few pages of the outline in its original form, then I will share my changes to the outline, and tell you: (1) what I changed in the outline, (2) why I made certain changes, and (3) what I would add to the outline, and why.
General comments: The outline that I received was comprehensive and easy to understand. The other initial comment I can make on the outline is that it is a document that someone else could understand - - another person who is not attending law school and does not know anything regarding the law can follow this student's outline. It is a good thing that someone else, who is not an attorney can follow your outline. You don't have to strive for this. You do, however, want to know that someone else could follow your outline, if necessary.
A Legend. I believe that every outline should include a reference to abbreviations that will be referred to in the outline. I also suggest that the student place the legend in the top right hand corner of her exam booklet. This prevents you from writing out full names of actors, the legal designation of parties (plaintiff & defendant, appellant & appellee, petitioner & respondent). When you have to write out the same information over and over again, it eats up your analysis time. That is time you do not have on an exam. Okay. So, let’s look at an example of a legend.
Legend
P-------------Plaintiff.
D------------ Defendant
CL ---------- Common Law
F -------------Factor
N------------- Note
GR----------- General Rule
XC----------- Exception
XT----------- Extension
P------------- Policy
The student whose outline I am reviewing included designations of PTF for Plaintiff and DFT for Defendant. I think those designations are too long. I feel comfortable using only P and D as a reference for Plaintiff and Defendant. If I need to refer to other Plaintiffs or Defendants in an answer, then I will add P1 and D1, etc., accordingly. One thing that you should decide prior to exam time is how you will approach the exam procedurally and substantively. That is another post. So know that this is an example of a Legend for your professors to refer to when you write the exam. You are not writing anything they haven’t seen before. I would be surprised to hear faculty tell me that they have never encountered some reference to a few abbreviations in a student’s exam booklet. You should feel free to use your own designations, or a symbol that your professor has used throughout the semester to discuss a particular issue, sub-issue, or set of circumstances.
What you will find below are two outlines: (i) a partial Negligence outline from Mr. David; and (ii) a rendition of an outline, discussing the same information, from me.
The Changes:
(1) Do Not Be Repetitive: I did not repeat anything more than one time. If it was discussed in the outline more than one time, I synthesized the two thoughts and placed the information in one sentence. Even before including the information in a single sentence, I surveyed what I had, first, and determined if I was actually (i) saying the same thing twice, or (ii) saying anything important at all.
(2) Changed Phrases To Sentences: Write an outline in the same manner in which you would speak to someone about a topic or a piece of information. Don't include "just words" in the sentence because you are in a hurry, and don't be over-inclusive. Write the sentence just like you would if you were writing the sentence on the exam. Once you use this technique over and over again, your sentences will be second nature (in the the outline and on the exam).
(3) Began Sentences With a Noun or Pronoun: A student promotes active writing when her sentences are direct, to the point, and include subject/verb agreement, followed by some object. A sentence with action is, by far, the easiest sentence to read, and to interpret. It is also a faster sentence to write, particularly on a handwritten exam, when you know that you must use your time judiciously.
(4) Kept Sentences Extremely Simple: Contrary to popular belief, an outline is not an Executive Order, a Treaty, or, Treatise, for that matter. Sentences transferred from an outline to the exam booklet don't have to be Pulitzer Prize winning, $10.00 word sentences. Simple sentences with simple concepts actually do work on a final exam.
(5) Special Categories: Often, an element will have a number of sub-categories. For example, there are many different "duties" for different groups of people, in Negligence. The duty that is highlighted on this post today is the duty to rescue. When creating a category and a set of rules for the Duty To Rescue, your goals is to include the words and terms of art that properly describe the duty to rescue and any extensions, or exceptions to the general rule. Look at the notes below in Mr. David's outline, then look to see how I have changed the format, the words, and the sentence structure. The sentence structure is appropriate. I do not, however, use many words to describe duty, and I don't use many words to describe whether or not a person has a duty to rescue. However, you will be able to detect immediately, the rules (guidelines) governing one's duty (or, lack therof) to rescue.
(6) Place Policy Considerations, Last: Use a P in your legend as a category for policy considerations. Now, listen (read) carefully. Most of every reason that you provide for an element of the law is or should be considered policy. Make certain that you separate the rule of law from a policy consideration. A policy consideration is the reason why the law was created. There may be tons of reasons why the law is the law, but generally, there is only one rule of law, usually followed by exceptions of the law or extensions of the law. So, return to your outlines. All of the many reasons that you have written into the outline, near the rule of law, are just policy considerations.
Yes, you may actually use some policy in the first-year courses, but policy is not the sole, or even the main basis for your answer. Your answer is generally based on a specific rule of law. So, look through these two outlines. You will see a lot of reasons why the law is the law in the first outline. In the second outline, I have taken a lot of those reasons out of the outline. You do not have to; again, you can place policy considerations at the end of a category or an issue. It can serve to just remind you of the reasons, or you may find yourself battling a policy concern on an exam. Policy is useful, but you must be careful not to cloud the general rule, the exceptions to that rule, or the extension of that rule, with policy. Policy is not the law. It drives the direction of the law, but it is not the law.
(7) Describe The Exact Facts & Law That Make Up The Holding: I just read a 130 page Con. Law II outline. I can guarantee you that I would not remember that document and I am not trying to remember it. An outline is not a book; it is document that highlights the relevant law and cases that support the law for the subject for which you are studying. It is incumbent upon you to write a document that you can learn in a relatively small period of time, that is not a memoir. Thus, look for the very basic and exact facts that mesh (or, control) the holding.
(8) Now, I want you to compare the two components of this outline, and try to look at how I shortened the outline, but managed to keep the essence of it (eg., the law & policy) as part of our learning tools.
Please write with your questions. Again, the first outline is from Mr. David's Negligence class. The second outline is the document I prepared where I took information from Mr. David's outline and made a shorter, outline with less material.
Let me know if you have any questions. Thank you.
(A) Mr. David's Negligence Exam Outline:
(Duty)
I. Negligence Elements:
a. To recover in a negligence action, pft must prove each element by a preponderance of the evidence (i.e., by more than 50%).
b. P must prove
c. Simplified Elements
(1) A duty of reasonable care
(2) Breach of that duty
(3) Causation (both actual & proximate)
(4) Resulting damaged
d. Expanded Elements
(1) Duty: that there is a legally recognized relationship between dft & pft
(2) Standard of Care: relationship designates a legal measure of appropriate conduct that dft must comport to
(3) Breach: that dft breached the duty owed to pft bt falling below the required standard of care
(4) Actual Cause: that there is a causal nexus between dft’s breach of duty & the injury suffered by ptf
(5) Proximate Cause: that there are no policy reasons to exculpate dft from liability notwithstanding the fact that dft breached a duty owed to ptf & that this breach caused ptf’s harm – proximate cause or legal cause; &
(6) DAMAGES: that ptf suffered a legally cognizable injury.
II. Duty
a. Intro: Duty focuses on the legal relationship between the parties – whether law obligates dft to act or not in certain ways vis-à-vis ptf. As Q of law, duty issues are determined by judges not juries. Norm, law imposes upon everyone a duty to use due care whenever he is engaging in any conduct which creates a risk of harm to others. As gen proposition, there is an obligation in law to avoid acting in manner that creates foreseeable risks of harm to foreseeable ptfs. In vast maj of tort cases, duty issue presents no prob whatsoever. However, the debate about who is a foreseeable ptf for purposes of duty has engendered serious debate.
i. Pointer: Duty is rarely key issue if dft causes the ptf personal injury or prop damage. Conversely, duty is usually a major issue where: ptf suffers harm other than personal injury or prop damage, where the dft is a land possessor or a gov entity, or where ptf is basing claim on the dft’s failure to intervene for ptf’s benefit. Duty issues may also arise where it is unforeseeable that ptf would have been inured by the dft’s conduct.
b. The Unforeseeable Ptf Prob
i. Palsgraf v.
1.Cardozo & Maj View - No Duty If Outside Zone of Risk: there’s no duty owed to someone not in the zone of risk. The railroad was not liable for it’s employee’s conduct b/c his conduct, while negligent, created no foreseeable risk of injury to harm Mrs. P. Zone of risk is an issue of place & time that depends on dft’s neg act; the ptf’s safety must be reasonably threatened or there is no duty to her
2. Andrews View - “Neg in the air:” Dissenting Andrews, stated that dft owed duty of care to society, not just to specific individuals. Thus, if dft is neg towards anyone, he owes a duty to the injured ptf.
3. Modern Interpretation of Palsgraf – while often discussed & cited, don’t rely to heavily on this case b/c modern tort principles has moved far beyond the views in this case. Many crts today would use proximate cause as the brake on liability & would have little trouble finding a duty to Mrs. P based on special relationship of common carrier & a passenger.
4. Prox Cause Remains a Separate Issue: Cardozo & Andrews disagreed about scope of duty. A separate basis for potentially limiting liability is prox cause. Thus, under either of their views they might have rejected liability based on lack of prox cause.
ii. The Rescuer Doctrine: Public Policy requires that potential rescuers be included in group of foreseeable ptfs. This has resulted in the maxim “danger invites rescue.” The rule has also been applied to when ptf was injured while attempting to rescue dft from her own neg. Accordingly, duty will be found owing to injured rescuer.
iii. Injuries to an Unborn Child: At common law, a child could not recover for injuries sustained prior to birth b/c an unborn child has no legal existence apart from mother. However, maj of jurisdictions has now hold that where child is viable, it can recover for its prenatal injuries. Some states allow recovery even before viable.
c. Nonfeasance & Special Duty Probs: Key distinction is made between affirmative acts (misfeasance) & failure to act (nonfeasance). In gen, nonfeasance is insufficient to impose liability on dft for injury thereby caused.
i. Duty to Rescue: Dft has no obligation to rescue even when dft could do so easily w/no risk (§314).
1. Growing # of Exceptions include: when need for rescue is caused by dft’s conduct, when there’s a special relationship, & when dft has undertaken to act (exceptions listed: §314A&B)
2. Neg to prevent another from taking action nec for aid or protection of another
3. Liable for intentionally preventing rescuer (§326, 327)
4. Liable for obstructing hwy & stopping rescue (§328)
B. Professor Smith's Changes for Negligence Exam Outline (Duty)
Duty
(a) P must prove D had a legal duty to a foreseeable P, that D breached the duty, D is the actual cause (nexus) of P’s injury, P’s harm was the proximate, foreseeable cause of D’s actions and that P suffered an injury.
(c) Majority In the majority of jurisdictions, D owes no duty to P unless P is in the zone of danger, and there is a foreseeable risk of harm, where D's act, the time & place of the incident, and P's safety must be reasonably threatened (Cardozo).
(d) In the minority of jurisdictions, D owes a duty to every P because P has a duty to society, which includes every possible P (Andrews).
(e) Modern (Courts Today)
D’s liability likely based on proximate cause, not duty to determine liability.
D's liability imposed because of conduct, time & place.
(f) Duty To Rescue
GR: D has no duty to rescue
Exceptions
XC: D’s conduct requires rescue
XC: D has special relationship with P (eg., innkeepers & common carriers)
XC: D undertakes call to act with P
XC: D interferes with person already acting to assist P
XC: D intentionally prevents rescuer from rescue
XC: D obstructs highway & stops rescue
(g) Duty To Unborn Children
CL: D has no duty to unborn child because child does not exist.
XC: D has duty to child that is viable & can sustain life outside of mother’s womb
XC: D is liable to child for prenatal injuries
XC: D, in minority jurisdictions, liable for child that is not viable
N: Duty Is Major Issue If
(a) D is Government Entity
(b) D Land Owner/Possessor
(c) D does not intervene on P’s behalf
Duty Minor Issue If
(a) Physical Damage
(b) Property Damage
N. Due care required if engages in conduct creating risk of harm
N. Judge, not jury decides whether D had a duty to P
c. Breach
D falls below standard of care then D breaches duty to P
d. Actual Cause
P’s injury requires a causal nexus between D’s breach & P’s injury
e. Proximate Cause
N. No policy reasons to exculpate D from liability
f. Damages
P suffers legally recognizable injury
N. P must prove each element by preponderance (50%) in order to recover from D.
No comments:
Post a Comment