Cal Bar Tutorial “Tort Law Writing Samples” Salesman v. Gordon

Paul
Paul Pfau

Paul Pfau from Cal Bar Tutorial Review was kind enough to help even the first year student understand the concept of issue clustering, and recognition. Below are some writing style examples that can definitely help a candidate for the bar get through the written portion of the Exam, and keep their minds sharp for the Multistate portion. On our Google HOA’s, we will go into more of these and even model bar exams and model answers to see how close this style comes to the winning answer.

WRITING STYLE EXAMPLE for Torts (eg., Negligence law, personal injury.)

Below, is an example of an answer applying both the ICO issue-recognition and Writing Style approaches. Remember that “content” is always more important than “form” and that a more efficient format for your answer will ultimately give you the time to improve your content with more issues both seen and appropriately discussed.

I. Salesman (S) v. Gordon (G)

A. Negligence

(Prefatory Paragraph Technique – Only use when you have the time at the beginning of your answer and for a subject based on the proof of elements.)

In order to prove negligence, S must establish the following elements: (1) that he is a foreseeable plaintiff, (2) owed a duty or special duty, that (3) G breached, which was (4) both the actual and proximate cause of his (5) damages, with (6) no available defenses. Each of these is discussed, below.

1. Foreseeable Plaintiff

When the “door-to-door” S slipped on the banana peel on G’s “front porch” he was a foreseeable plaintiff under either the Cardozo or Andrews view because he was clearly within the zone of danger. At issue is the standard of care owed to him.

Duty

Special Duty Owed by Landowners

(FC Approach: A writing style used to extrapolate on your wider knowledge of an area of law.) Although the general duty of due care is owed to all persons, here the special duty owed by landowners is presented. Traditionally, the status of the plaintiff as a trespasser, invitee, or licensee governs the standard of care to discover known or reasonably discoverable unsafe property conditions. Modernly, only the reasonable foreseeability of discovering a dangerous condition is important.
When S stepped onto G’s “front porch” he could be considered a trespasser because as a “door-to-door” salesman there are no facts to suggest that he had either the express or implied consent to physically invade G’s property. As such, it is likely that G would have no duty to warn s of its presence even though the banana peel could otherwise be considered an unreasonably dangerous artificial condition posing an unsafe hazard.
Although there are no facts to suggest that S was invited onto G’s premises as an invitee, a closer case could be made that he was a licensee given the fact that S entered G’s land for his own business purpose. Here, too, however, there are no facts that he was given permission by G to do so. As a result, under either interpretation, G owed no duty to warn S of the banana peel as a dangerous condition nor to conduct a reasonable inspection of the porch that might have resulted in its discovery.
Modernly, a case could be made that it was reasonably foreseeable for G to discover the banana peel as a dangerous condition so that he should have warned S before he stepped onto the porch. While the facts may ultimately be insufficient to make an informed analysis, arguing against S’s interest is the fact the peel was only “recently” left on the porch suggesting that G may not have been able to reasonably foresee the unsafe condition in a timely manner.

Duty to Control

Although there is no duty to generally prevent a third party from injuring another, in some cases an affirmative duty may be imposed where the defendant had the actual ability and authority to do so, such as the special relationship existing between parents and minor children.
When G’s son “left the banana peel on G’s front porch” G may have been under a special duty to control his son’s action if he had the ability to discover the “recently left” peel as well as the authority to prevent his son’s action. Given the fact it is probably unknown whether G’s son is a minor, however, the ultimate outcome of the analysis of this issue is unclear.

Alternatively, G may be vicariously liable for the action of his son in creating the unsafe property condition given his special parental relationship. This is unlikely, however, if G’s son is a more responsible adult and not a minor.

Breach

As discussed above, the reasonable person standard would apply in assessing whether G breached any of the special duties examined, above. As noted, the strongest argument for S is that G had a duty to control his son’s action in the event he was a minor. Under either the traditional or modern view relating to a landowner’s duty, it is probably unlikely as discussed above that G would be viewed to have acted unreasonably in failing to discover and remove the potentially unsafe condition created by the banana peel.

Causation

Actual

But for the S slipping and falling as a result of stepping on the banana peel, he would not have broken his nose.

Proximate

In an indirect cause case, an affirmative intervening force such as an act by a third party combines with a defendant’s negligent act causing the plaintiff’s injury. As a dependent intervening act it is foreseeable and will not supercede the defendant’s liability. If it is an independent intervening act it would be unforeseeable and work to cut off the defendant’s negligence.

When G’s son “left the banana peel” this could be construed as a foreseeable intervening act which would not supercede G’s liability in the event the son is viewed as a minor so that his conduct in creating the unsafe condition could be interpreted as more predictable. In contrast, if the son is older and perhaps more responsible, his act might be considered sufficiently unforeseeable as to supercede or cut off G’s liability.

Further, when S was injured due to his “rather long nose” G is obligated to take his plaintiff as he finds him according to the Thin Skull Plaintiff doctrine so that his injury would remain the proximate cause of G’s negligence.

Damages

G would at least be liable for compensatory damages for all of the medical expenses associated with the repair of the S’s nose.
6. Defenses
Assumption of Risk
When the S “slipped and fell” on the banana peel he may have assumed the risk of injury if it is determined he both knew of the risk and voluntarily proceeded to step onto the front porch anyway. Although his knowledge could be implied where the risk of similar injury is one that an average person – let alone a “door-to-door” S – could appreciate, the facts may ultimately be insufficient to make a clear judgment regarding this defense.

Contributory Negligence

Further, S may be viewed as having failed to exercise due care as a “door-to-door” S given his implied experience in safely approaching other’s property. Again, the facts may be insufficient to reach a conclusion as to the likelihood of this defense as a complete bar to recovery.

Comparative Negligence

Alternatively, in some jurisdictions G could argue that S’s conduct in potentially failing to exercise due care should be weighed against his negligence in failing to discover and remove the banana peel as an unsafe condition. Not a complete bar to recovery, this seems a more reasonable outcome given the analysis noted above as to the possible familiarity S might have with unsafe conditions on front porches and G’s own negligence.
Salesman (S) v. Gordon’s Son (GS)

Negligence

Given the fact S was a foreseeable plaintiff as discussed in his case against G, at issue is whether GS owed a duty to exercise due care and breached that duty when he left the banana peel on the front porch. Although the facts are unclear as to his adult status, GS would more likely be found to have failed to exercise due care if he was not a child and thus more responsible. In contrast, he would only be held to the standard of a child of like age, education, intelligence and experience in assessing whether he breached any duty owed to S. Even so, the facts are sufficiently unclear as to make the resolution of these issues this difficult.

Presuming GS was under the general duty to exercise care and that he had breached his duty, it is clear that he would be both the actual and proximate cause of S’s injury. At the very least, S would contend that the combination of G’s negligence as discussed above acted in concurrence with GS’s negligence to cause his injury.

GS would also be liable for compensatory damages for S’s medical recovery. GS’s damages would not be reduced due to the Collateral Source Rule even if S also recovered damages from G as another source.

GS would claim the same defenses as discussed, above, with G. The same analysis would apply as well (Supra; I.A.6.a-c).
THE REVIEW PROCESS/GRADING

Following the issue-recognition and writing style process, be sure to then meticulously review your work product. First, compare the model answer (of any LAE) for issues. Then, for Writing Style, making sure to concretely evaluate each of the elements of style that are a part of the writing style process. Next, give yourself three (3) grades: Issues, style, overall. Your overall grade is weighted more heavily for issues – and is not strictly an average of issues and style. Be sure to make constructive comments on your answer – noting both issues you may have missed as well as elements of style you may have also missed or need to improve. This will assist in helping you to develop your perspective as to the sufficiency of your writing standard as well as give me insight regarding your perspective.

Remember: Every “practice exercise” – whether for the MBE, essay, or PT – is a two-step process: First, do the exercise employing the use of your technique/method to improve your skill; second, meticulously review the quality of your work product/answer in developing your judgment as to the precise standard you achieved. Then, “build” your knowledge into your substantive outline, crystallize the specific areas of improvement needed, and work to upgrade your next “generation” of work with those improvements. In other words, work to progressively develop both your skills and standards. It can also be very constructive to engage in a “re-write exercise” of the same problem following your initial evaluation of it. Constantly work to “build the mould” and reinforce your skills and standards from one exercise to another. Have faith – you can do it!

Abbreviations:

PREF

MIN

MAJ

MAJ

SEGUE

MIN

MIN

MIN

SEGUE

MAJ

MIN

MIN

MIN

MIN/MAJ

MIN

MIN

MIN