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0:00
Want to see a professor grade a negligence essay? Hoping to get some ideas before your exam? By watching this video you will get the sense of what works and doesn't work when writing a law school essay.
0:18
Hi this is professor Beau Baez. The exam that I'm about to grade is from a torts course that I taught a few years ago. It isn't a perfect answer nor is it a horrible answer. Overall the student did a great job, making a few mistakes along the way. And with that, let's jump in. What I'm going to do is first show you the exam question that I gave which is a bar exam style question. On a piece of paper it would take, about half a page to three quarters of a page. And there will be several issues.
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Once we go through the essay question, which you can always come back to, we will then go to the rubric and then I will begin grading a student's answer. Sam is an employee for the Washington Post newspaper ("the Post"). He was sent by the Post to city to cover one of the presidential debates. The debate was scheduled on a Friday from 8 p.m. to 10 p.m. but Sam noticed that Museum, three blocks from the presidential debate site, was exhibiting a large collection of original sketches by noted
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artist John James Audubon. The exhibit was on Friday only from 7 p.m. to 10 p.m. Sam came up with a plan to walk one block from the hotel to the museum, rush through the museum in about 20 minutes, and then get to the debate by 7:30 p.m. On Friday, as planned, Sam walked over to the museum to see the exhibit. He entered the museum just as it opened at 7 p.m., and began walking around. At 7:15 p.m., while on the second floor of the Museum, Sam noticed a wide brass handrail along
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the stairwell that appeared to go down at a gentle slope to the first floor. Sam had always wanted to slide down a rail like this so he looked around and noticed that no one was looking. He then slid down the rail but the rail was much slicker than he thought and as he got to the first floor he tumbled about 15 feet past the stairs right into a John James Audubon painting causing $200,000 in damages to the painting. Discuss all issues related to a lawsuit
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brought by museum to recover two hundred thousand in damages. Do not discuss any intentional torts. Let's move over to the rubric. The first issue is negligence and there is a rule statement for negligence. The duty, breach of duty, causation, and damages. So the duty, of course, is to act as a reasonably prudent person under the circumstances, and a reasonable person is expected to notice what is obvious and apparent. Breach is falling below that standard of care.
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Actual cause. In this case it would be the but-for test. Proximate cause, measured by the foreseeability test. And damages. Plaintiff must have suffered harm. Remember, it's the museum that we're looking at. That was the answer, so then the analysis: Sam slid down the rail because he wanted to and he caused two hundred thousand dollars in damages. The logical inferences and conclusions I was looking for: First it's dangerous to slide down a hand rail, and it's likely
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you're gonna hurt yourself, maybe somebody else or property, as what happened here. So the possibility of damaging something in a museum far outweighs the pleasure that Sam received while sliding down. So the conduct was unreasonable, breach of duty. He's the actual cause. But for him sliding down the painting would not have been harmed. He's also the proximate cause in that it is foreseeable that somebody sliding down at a museum could cause damage and of course there was actual harm $200,000.
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Now in this case, and in many of these cases, you generally want to get to the superior. In this case Sam probably doesn't have $200,000 so if you can get to the boss, want to sue the boss. So in this case I was also testing on respondeat superior. This is when an employer is liable for the tortious actions of an employee when the employee was acting within the scope of his employment. He's an employee for the post. He was sent over to cover the presidential debates.
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He was staying very close to the museum. He took a break from his required duties to go over. If you haven't covered respondeat superior you need to know that the concept is very broad. Generally, the law tends to find that people are acting within the scope of their employment. So in this case he appears to be acting within the scope of his employment, even though he was doing his own thing. He's on a personal errand. Which leads us to the final issue related to whether he was in the scope
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of his employment, was it a frolic or a detour. So if it's a detour it's a slight deviation by the employee for personal reasons that will not allow an employer to escape liability. Or was it a frolic? A substantial deviation by the employee for personal reasons in which case the employer may escape liability. So he deviated, clearly for personal reasons. He was not sent to see the museum exhibit but he was only one block from his assignment, the deviation lasted
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for a short period of time, and he committed a negligent act when sliding down the rail. So it appears that this could be a detour not a frolic. But keep in mind what I'm looking for, what I'm grading, is that the student spotted the issues and reached a conclusion. You could certainly argue that it was a frolic and not a detour and that's perfectly fine. I just prepared this rubric to give me a sense of what I was looking for but also recognizing
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students can reach different conclusions and that would be perfectly fine and still get a good grade. So let's see what this one student happened to do. I'm just going to read it and as I read it I'm going to give you my thoughts. The issue is whether museum has a cause of action for negligence against Sam That is a great opening statement. In one sentence I know the two parties: Museum versus Sam, and the tort. In this case it's negligence.
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Negligence is a tort dealing the unreasonable conduct of the plaintiff which results in damage to the plaintiff. Now when I see small grammatical mistakes, I ignore them. Now if they tend to be pretty significant, systemic then it probably does affect your final grade. But you know the occasional missing word is not going to hurt you. This student started off talking about unreasonable conduct. In order to establish a prima facie case you have to establish by a preponderance of the evidence.
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There's also some additional language here which it just isn't necessary. The preponderance of the evidence. Frankly, I just don't care about that. While it's a true statement it just adds to the the essay and really not what I'm looking for generally most tort professors don't need to know that it's a preponderance of the evidence that's just part of any civil trial or at least most civil trials. I would have just jumped into the elements.
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The elements are duty, breach, actual cause, proximate cause, and damages. Here it is likely museum will be successful in a cause of action against Sam for negligence. This is a great opening. Now I know the five elements that you're going to talk about and the student has given me a brief answer that the museum will be successful. If you have time you want to open up with something broad like this and then work your way down. The student is using the nested IRAC method.
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So now it's moving to the next element. Duty is the first element. Duty requires that there be a legally recognized relationship between the defendant and the plaintiff warranting that the defendant is found to owe a duty to the plaintiff. Here Sam is a lawful visitor of the museum so is an invitee. The student here, what he or she has failed to do, or misunderstands, land owners, the duty owed by land owners, is based on the status of the invitee.
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The whole invitee, trespasser, licensee--the status rules for land possessors-- applies only to the land owner or possessor. That would be the duty that museum owed to Sam not the duty that Sam owed to the museum. So the student is just mistaken. This hurts a little bit in that it shows they really don't understand how the landowner, land possessor duties apply. Kind of has it flipped around. So in this case those rules do not apply to Sam because he, while it's
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true he's an invitee his duty is one of reasonable care. It has nothing to do with his status as an invitee. Let's move on. Therefore he has a duty to the museum as a guest. Again sort of mistaken. Doesn't understand the concept. Although Sam only intended to see the museum until the presidential debate started. This is irrelevant. As a general rule a person has a duty to act as a reasonably prudent person in a similar circumstance. Sam is no exception therefore this element is satisfied.
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So the student got to the right standard of care, which is to act as a reasonably prudent person, but for the absolutely wrong reason. Some confusion here, which is going to hurt the student a little bit in their final grade. Now it's not fatal here because they actually reach the right standard of care, the RPP standard. Let's keep going. Breach, second element. Breach is when a defendant's conduct fails to meet the standard of care. Excellent opening. The issue statement, then the rule.
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Now, let's go to the analysis. This can be determined by direct evidence or circumstantial. Correct, just absolutely irrelevant here. Which requires an inference and inference is a form of reasoning. In this case the student here is unsure. They think, they're not really, they don't really have a strong command of the difference between direct and indirect evidence or circumstantial. So they just throw it in there. It's not necessary. We really don't need an inference in this case.
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The question is whether his sliding down the railing was in fact negligent. We know what he did. So now it's just a question of arguing whether that was in fact unreasonable or not. The whole direct/indirect is just unnecessary and causes confusion. So in this case, so now we get to the analysis, the real analysis, Sam saw a hand rail going from the second floor to the first floor and decided to slide down the rail. This is not reasonable for someone to do
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in a business establishment and thus Sam breached his duty. The breach of Duty is generally the hardest section for most students to master, at least in the first year. So look at what he wrote. This or she, the student wrote: it is not reasonable for someone to do so. Why? Give me the why. That's what breach is. It's trying to establish that what Sam did was unreasonable. So something talking about the possibility that somebody could get hurt. That he could get hurt.
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But here the student just gave a conclusion. The fact and then a conclusion, but never really applied those facts to the issue which is breach of duty. One way you can do that is through use of cost-benefit analysis, the Learned Hand formula. Again, you don't need to write B is less than P times L, but use that process, that way of thinking to establish that the conduct was unreasonable. So what's the burden? So you could say: here Sam had a couple of options.
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One he could have just walked down the stairs, or, as he did, chose to go down the banister. But the risks that he imposed by going down that banister was that: one he could fall or somebody else could come into the room as he's coming down. He could injure them, or as happened here he could break something. Given that it's a museum and the risk of things breaking are just so high. So given that he had such a high risk for
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what he did versus what he should have done was just walking down the stairs that will be deemed to be unreasonable under these circumstances. So two or three sentences really going through that would have been a much better solution. Actual cause is the third element. Actual causation is proving that the defendant's culpable conduct was the factual cause of plaintiff's damage. There are two tests: but for and substantial factor. If there is only one defendant and cause then the but-for test.
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If there are multiple defendants or causes then the substantial factor. Here Sam is the only reason that the painting was broken, therefore the but-for test is appropriate. But for him sliding down the painting would not have been destroyed. Therefore Sam as the actual cause. This is what I call the A-plus-plus answer. He did a great job going through both tests. Probably just really not necessary. If you have the time, great you can mention both tests as this student did.
13:21
But really unnecessary. In this case, since there was only one cause, you could probably just get away with just mentioning the but for test, then the analysis and then a conclusion. Then you could have probably cut a couple of sentences from this, but from a grading perspective this is an excellent answer. But you always have to balance what you can write versus the amount of time you've been given. If you don't have a lot of time, this is probably too long. But an excellent causation.
13:48
Now proximate cause is the fourth element, deals with foreseeability. By the way, one thing I've noticed, what this student's doing as he goes or she goes through each element, they say the first, second, third, fourth. Very organized, I'm seeing exactly where they're going, kind of keeping me on track. So as a grader I forget that I'm the professor and I'm reading it through the lens of somebody who doesn't know the facts or the law of negligence.
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And so this is a great way of approaching a torts essay. In order for a defendant to be the proximate cause it is required that their conduct not be too attenuated in order to constitute liability. There are three tests that are used to determine proximate cause. The foreseeable plaintiff. The is the type of harm foreseeable and are there any superseding intervening event. Now the student here is getting something confused.
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They're getting the foreseeability test confused with the proximate cause test. So the foreseeable plaintiff, that's a duty question. That is not a proximate cause concern. So that's already just incorrect. The test in determining proximate cause is the foreseeability test and then the law generally only focuses on two types of unforeseeabilities: the unforeseeable type of harm and the unforeseeable intervening event or the superseding intervening event, neither of which exist here.
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Given that they don't really exist, I think he's gonna see how it looks like he's he or she starts talking about these three issues, and this is a very common problem for first-year students. They don't recognize that you don't really need to spend a lot of time on proximate cause unless you have an unforeseeable type of harm or an unforeseeable intervening event. In a sense sometimes you view the proximate cause as a negative element,
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if the act is foreseeable you mentioned that is measured by foreseeability. A quick fact: it is foreseeable that somebody's sliding down a banner would cause damage. Thus the proximate cause element is met. That's all that was needed here. You only go deeper, as the student tried to do, if it's unforeseeable, which is sometimes why it's called a negative element, in the sense you only talk about it when it's unforeseeable. He just gets it in the wrong place.
16:13
Foreseeable plaintiff, foreseeable type of harm, sees require that type of harm be foreseeable, not the extent of harm it be foreseeable here the museum's painting was destroyed. Sam was in a museum full of expensive art and collectibles, doing exhibited pieces by famous artists so completely foreseeable his conduct would result in harm to art. Again this is very good. He mentions why it's foreseeable. If you have time for this kind of answer this is a great A-plus-plus plus answer,
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much more than what was needed. There are no superseding intervening events here so this discussion just was irrelevant. So what I would actually do an exam, I would just ignore these two paragraphs. I would actually put a deletion mark through them, no points off I'm just ignoring them because they're just not relevant. Therefore due to foreseeability Sam is the proximate cause. Good conclusion to the proximate cause section.
17:06
Damages is the fifth category. Damages may be recovered as long as they are reasonable. Here the museum is suing for the loss of the $200,000 painting. While this is a large amount, it is provable economic loss which is a pecuniary damage. Pecuniary damages are a type of compensatory damages which are economic harms that are able to be proven. Very good. More generally than I would want or expect but the student is absolutely correct.
17:32
It is a pecuniary damage, its economic, it's provable so this is an excellent answer. But a lot more than I would have expected and students with less than this still could have gotten an A on the exam. So in conclusion Museum will be successful in a cause of action against Sam for negligence. Hopefully you saw that you needed a good thorough discussion on negligence but a lot of this discussion is really gonna focus on vicarious liability, which is the next issue.
17:59
The issue is whether the Post newspaper will be liable for Sam's negligence when he acted negligently and destroyed the museum's painting. Great opening statement. So now you're telling me, student is, why he's going to talk about this thing called vicarious liability. Vicarious liability is a form of liability which an employer can be made liable for the tortious acts of their employees if they're acting within the scope of their employment.
18:20
So one mistake the student has made they got the wrong term. The concept here is respondeat superior. Vicarious liability is the broader concept and there are several subsets under vicarious liability. So here he did need to mention respondeat superior and that's gonna hurt him a little bit on his grade. The scope of employment is a crucial aspect of this tort, requires that an employee not deviate substantially from work for personal purposes, which would be considered frolic.
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Frolics negate an employer's vicarious liability. However if an employee only deviates slightly for a reasonable amount of time for personal purposes this is classified as a detour. The employer is still liable. He kind of throws everything in here. It's a little bit jumbled, could have improved on a little bit but the student clearly understands what's at issue. The things that needed to be discussed. So let's keep going and let's see if maybe he fixes it up in the analysis.
19:14
Here Sam is an employee of the Post assigned job of covering the presidential debate. So now he's giving me a lot of facts. Why are. These facts just aren't relevant, explain to me why the facts are relevant. So far nothing that's going to hurt the student but you need to start weaving that in. Something like: the first issue is whether he was acting within the scope of his employment. That would have been a great way to start this section.
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Let's see: he decided to go to the presidential debate, this was Sam's own decision probably for his own interest in enjoyment, he chose to go before knowing the time would overlap. It's not a substantial amount of time but it is quite a deviation from his work that his employer would expect of him. Certain things are expected, deviations such as breaks for food, restrooms. However going to a museum is not one of them.
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Therefore it is likely that Sam's trip to the museum would be viewed as a frolic thus eliminating the Post liability. In conclusion, the student here, the concepts are here could have been, should have been more organized. Not nearly as organized as the first section on negligence. With a little bit more work this could have been much much better. So that, I would say, the concepts are all here the facts are here just not quite as organized. This could have been done differently.
20:31
First issue, whether he was acting within the scope of his employment, he was scheduled to be in that part of town for a work assignment, he was sent there. This was right before a meeting he had to go to and then mentioning sort of a little bit of the policy behind respondeat superior which is to find that, generally you are within the scope of your employment if you're on the clock. So this weekend here he was on the clock then I would look at the exception to the rule which is
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frolic and detour. Two tests that the courts look at in determining whether somebody was within the scope of the employment are frolic and detour. And sort of break that out separately. So here it's sort of a jumbled mess. Let's keep going. Then the student finds the issue of whether the museum was comparatively negligent. This just was not an issue. At this point just kind of delete this whole section. It's not anything was testing on.
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The idea that they were negligent in having a slick handrail for somebody using it to go down, and in any event that's not how he used it he used it as a slide. What I do here is I just ignore, ignore, ignore, delete. See if there's anything else, and that was it. So that was this negligence essay, well done. This is a good answer, thinking the year I gave it, was the best student answer. Some flaws in it but otherwise excellent work by the student.
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What I hope you take away from this grading demonstration is that words matter. Making mistakes can alter what the professor thinks about your answer as it creates doubt as to whether you really know the material. Also having an organizational system goes a long way to keep you on track and giving the professor the impression that you know how to write. If you've got some more questions on exam grading leave it for me in the comment section below.
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