316: Spotlight on Torts (Part 1 – Negligence)

Welcome back to the Bar Exam Toolbox podcast! This is the first of three episodes in which we summarize the topics from Torts we've covered in our "Listen and Learn" series. Today, we're focusing on negligence and its four key elements - duty, breach, causation, and damages. We have included an attack plan for exam questions on negligence, and a quick practical example.

In this episode, we discuss:

• An overview of negligence
• The four elements of negligence - duty, breach, causation, and damages
• An attack plan for answering exam questions on negligence
• A practical scenario illustrating a negligence analysis

Resources:

• Private Bar Exam Tutoring (https://barexamtoolbox.com/private-bar-exam-tutoring/)
• Podcast Episode 88: Listen and Learn – Negligence Per Se (https://barexamtoolbox.com/podcast-episode-88-listen-and-learn-negligence-per-se/)
• Podcast Episode 97: Listen and Learn – The Reasonable Person Standard (https://barexamtoolbox.com/podcast-episode-97-listen-and-learn-the-reasonable-person-standard/)
• Podcast Episode 147: Listen and Learn – Negligence: Duties of Professionals and Children (https://barexamtoolbox.com/podcast-episode-147-listen-and-learn-negligence-duties-of-professionals-and-children/)
• Podcast Episode 149: Listen and Learn – Negligence: Duties of Landlords, Owners, and Possessors of Land (https://barexamtoolbox.com/podcast-episode-149-listen-and-learn-negligence-duties-of-landlords-owners-and-possessors-of-land/)
• Podcast Episode 186: Listen and Learn – Negligence: Proximate Cause (https://barexamtoolbox.com/podcast-episode-186-listen-and-learn-negligence-proximate-cause/)
• Podcast Episode 247: Listen and Learn – Negligence: Factual Causation (https://barexamtoolbox.com/podcast-episode-247-listen-and-learn-negligence-factual-causation/)
• Podcast Episode 315: Listen and Learn – The Breach Element of a Negligence Claim (Torts) (https://barexamtoolbox.com/podcast-episode-315-listen-and-learn-the-breach-element-of-a-negligence-claim-torts/)
• United States v. Carroll Towing Co. (https://www.casebriefs.com/blog/law/torts/torts-keyed-to-dobbs/negligence-the-breach-or-negligence-element-of-the-negligence-case/united-states-v-carroll-towing-co/)

Download the Transcript
(https://barexamtoolbox.com/episode-316-spotlight-on-torts-part-1-negligence/

Episode Transcript

Lee Burgess (00:02):
Welcome to the Bar Exam Toolbox podcast.
Today we have another episodein our substantive spotlight
series, and we're talking abouttorts - specifically, negligence.
Your Bar Exam Toolbox hosts are AlisonMonaghan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
effectively, stay sane, and hopefullypass and move on with your life.

(00:22):
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,

(00:43):
and we'd love to hear from you.
And with that, let's get started.
Welcome back!
We have another episode of oursubstantive spotlight series, where we
are diving deep into the world of torts.
Today we're tackling negligence- the bread and butter of tort

(01:03):
law, and one of the most heavilytested topics on the bar exam.
Think of it as the foundationof your tort law house.
If you don't get this right, the wholestructure might come tumbling down.
What's fascinating about negligenceis how it permeates everyday life.
Every time you drive to school, grabcoffee from that shop with the slightly
uneven floor, or trust a doctorwith your health - you're swimming

(01:27):
in potential negligence scenarios.
Today we're going to synthesizethe key concepts we've covered
in our "Listen and Learn" series.
And trust me, mastering thesewill be crucial for both law
school exams and the bar.
So, let's start with the big picture.
Negligence has four essential elementsthat you absolutely must memorize:

(01:50):
duty, breach, causation, and damages.
Think of these as the four pillarsholding up your negligence claim.
If any one of them crumbles,your entire case collapses.
The first element - duty - addresseswhat one person owes to another.

This is where we ask (02:06):
Did the defendant owe the plaintiff a duty of care?
In most cases, we apply thereasonable person standard.
Every person owes a duty to foreseeableplaintiffs to act as a reasonable prudent
person would under similar circumstances.

But here's where it gets interesting: The reasonable person isn't just (02:22):
undefined
some average Joe on the street.
As we covered in our "Listen andLearn" episode on the reasonable person
standard, linked to in the show notes,this hypothetical reasonable person
never jaywalks, never texts whiledriving, and always reads warning labels.
They're not perfect, but they'recertainly more careful than

(02:44):
most of us on our best days.
The standard changes basedon who the defendant is.
For children, we applya modified standard.
They're held to the standard of a child ofsimilar age, intelligence, and experience.
But wait!
There's a major exception.
When a child engages in an adultactivity like driving a car,

(03:05):
they're held to an adult standard.
So, that 16-year-old who just got theirlicense - they don't get a "rookie"
discount when it comes to negligence.
Professionals get special treatment too.
A doctor isn't compared to a reasonableperson; they're compared to a
reasonable doctor with similar training.
As we discussed in our "Listen andLearn" episodes, these professionals

(03:28):
have a heightened duty becauseof their specialized knowledge.
A brain surgeon isn't judgedby what an average person would
know about the frontal lobe.
They're held to the standardof other brain surgeons.
Landlords, property owners, andpossessors of land also have special
duties, which we explored extensivelyin our "Listen and Learn" episodes.

(03:49):
The duty might change dependingon whether someone is an
invitee, licensee, or trespasser.
Remember the attractive nuisance doctrine?
That's where children aredrawn to potentially dangerous
conditions on someone's property,like an unfenced swimming pool.
The law recognizes that kids willbe kids and places additional duties
on landowners to protect them.

(04:12):
Once you've established duty,the next question is: Did the
defendant breach that duty?
This is where we compare what thedefendant actually did against
what a reasonable person would'vedone under similar circumstances.
In other words, did they fallbelow the standard of care?
There are several ways to prove breach.
As we learned in our "Listen andLearn" episodes, you might apply the

(04:35):
BPL formula from the classic caseUnited States v. Carroll Towing.
Under this approach, if the burden [B]of taking a precaution is less than
the probability [P] of injury timesthe expected loss [L], then failing
to take that precaution is a breach.

Think about it (04:53):
If it costs $100 to fix a wobbly stair railing that has
a 10% chance of causing a $10,000injury, math tells us that's a breach.
Industry customs can be relevant too,though they're not determinative.
Just because "everybody does it" doesn'tmean it meets the standard of care.

(05:15):
And compliance with statutes - that'sevidence of reasonable conduct,
but it's not conclusive either.
Driving under the speed limit duringa blizzard might still be negligent if
conditions warrant even slower speeds.
Sometimes a plaintiff might not knowexactly how the defendant breached
their duty, but the circumstancesstrongly suggest negligence occurred.

(05:39):
That's where res ipsa loquitur comes in– Latin for "the thing speaks for itself".
As we discussed in our episodes,this doctrine applies when, [1] the
injury typically doesn't occur withoutnegligence; [2] the defendant had
exclusive control over what causedthe harm; and [3] the plaintiff
didn't contribute to their injury.

Classic example (05:59):
You wake up from surgery with a scalpel left inside you.
You don't need to prove exactlywhat the surgical team did wrong.
This situation speaks for itself.
Let's move to the thirdelement - causation.
This is actually two separate tests- factual cause and proximate cause.

(06:20):
We covered factual cause extensivelyin our "Listen and Learn" episodes.

The question here is simple: But for the defendant's breach, (06:25):
undefined
would the harm have occurred?
If the answer is "no", you'veestablished factual cause.
But what if there are multiple causes?
That's where the substantialfactor test comes in.
If the defendant's actions were asubstantial factor in causing the harm,
even if they weren't the only cause,that's enough for factual causation.

(06:48):
Proximate cause is all aboutforeseeability and policy considerations.
Even if the defendant's actionsfactually caused the harm, we ask:
Is it fair to hold them responsiblefor this particular consequence?
The classic example is the "egg-shellplaintiff" rule - you take your
plaintiff as you find them, even ifthey have an unusually thin skull

(07:09):
that cracks under a light tap.
Intervening causes can breakthe causal chain, especially
criminal acts by third parties.
But if those acts were foreseeable,the original negligent party
might still be on the hook.
Remember, foreseeability is the key.
The final element - damages- requires actual harm.

(07:32):
Unlike some intentional torts wherenominal damages are available,
negligence requires the plaintiff to havesuffered real harm, whether physical,
property, or sometimes emotional.
Now, there are a couple ofspecial doctrines that can help
plaintiffs establish negligence.
Negligence per se, which we covered in oneof our "Listen and Learn" episodes, uses a
statute to establish both duty and breach.

(07:55):
If a statute was designed to protectagainst the type of harm that occurred
to a class of persons that includes theplaintiff, and the defendant violated that
statute, the duty and breach elements areessentially checked off automatically.
Now, when analyzing negligencequestions on an exam, here's your

attack plan (08:12):
One, start with duty.
Identify the standard of care.
Is it a reasonable personor a special standard?
Two, consider any specialrelationships between the parties.
Three, look for statutesthat might establish duty.
Next, analyze breach.
Compare the defendant's conduct towhat a reasonable person would've done.

(08:36):
Consider the BPL formula.
Look for violations ofcustoms or statutes.
And consider whether resipsa loquitur applies.
Then it's time to examine causation.
Start with "but for" causation,then consider the substantial
factor test if needed.
Analyze foreseeability for proximatecause, and look for any intervening

(08:57):
causes that might break the causal chain.
And then make sure you have damages.
Identify the actual harm suffered bythe plaintiff, and make sure it's the
type of harm that the law recognizes.
Remember, negligence analysisis highly fact-specific.
The same action might benegligent in one context, but
perfectly reasonable in another.

(09:18):
Context matters!
Here's a quick hypo to bring itall together: Dr. Smith prescribes
medication to Patient Jones withoutchecking his allergy history.
Jones has a severe allergicreaction and sues for negligence.
So, let's break it down:

1. Duty (09:34):
Well, yes, doctors owe patients a professional standard of care.

2. Breach (09:40):
Well, likely yes.
A reasonable doctor would check allergyhistory before prescribing medication.

3. Causation (09:47):
Factually, "but for" the prescription, no
reaction would've occurred.
Proximately, an allergic reaction is aforeseeable consequence of prescribing
medication without checking allergies.

4. Damages (10:02):
Well, yes, Jones suffered physical harm from the reaction.
The result?
Well, it looks like negligence to me.
For deeper dives into these topics, checkout our "Listen and Learn" series episodes
on the reasonable person standard, specialduties, causation, and negligence per se.
Each episode walks through real barexam questions with detailed analysis.

(10:24):
All of these episodes arelinked to in the show notes.
In our next episode, we'll tackleintentional torts - the oldest and
most straightforward category oftorts - from battery and assault
to defamation and trespass.
We'll explore what makesthese torts intentional and
how to analyze them on exams.
If you enjoyed this episode of theBar Exam Toolbox podcast, please

(10:47):
take a second to leave a review andrating on your favorite listening app.
We would really appreciate it.
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If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at [e-mail] [e-mail].
Or you can always contactus via our website contact
form at BarExamToolbox.com.

(11:09):
Thanks for listening, and we'll talk soon!