Welcome to learn law better do you wonder what goes through the mind of a
professor when they grade an exam stay to the end as I go through a negligence
essay final explaining what I am thinking as I read the essay. Don't
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Hi this is Beau Baez and today I want to walk you through, line by line, a final
exam I gave to my students a few years ago. Before I forget it shout out to
Steve for suggesting that I make this episode. Let's begin with an essay
question I gave to my students a couple of years ago. So with any essay question
you always start down here with the call of the question discuss all issues related
to a lawsuit brought by museum to recover the two $200,000 in damages do
not discuss any intentional torts. You always start with the call of the question
because then you get some clues here we know not to think about intentional
torts and we know that the plaintiff is going to be the museum. So with that
let's go and read the rest of the essay question. Sam is an employee for the
Washington Post newspaper he was sent by the post to city to recover one of the
presidential debates the debate was scheduled on a Friday from 8:00 to 10:00 pm
but Sam noticed that museum, three blocks from the presidential debate site,
was exhibiting a large collection of original sketches by noted artist James
or John James Audubon. The exhibit was on Friday from 7:00 to 10:00 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 as
it opened at 7:00 began to walk around. At 7:15 p.m., while on the second floor
of the museum, Sam noticed a wide brass handrail along 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 there was no one looking. Then he slid around 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 James Audubon painting causing 200,000
in damages to the painting. Now in this exam I was looking for three things:
Sam's negligence, vicarious liability through respondeat superior, and a
discussion of frolic versus detour. So with that let's look at a student answer
that I haven't looked at since I graded several years ago. So what I'm gonna
do here is I'm just going to tell you what's going through my mind what I'm
thinking point by point, any issues I see as I'm
reading through this. So let's see how the student starts. The issue is whether
museum has a cause of action for negligence against Sam. Great.
Immediately I know the party the plaintiff the defendant and the cause of
action which is negligence. Negligence is a tort dealing with the unreasonable
conduct of the plaintiff, which results in damage to the plaintiff. In order to
establish a prima facie case they must prove, okay, duty, breach, causation. Great
it's all there. Great opening statement I now know the parties, the tort, the main
issues. Remember as you, when I'm grading I sort of divide my mind.
Half of me I'm reading this as a person who doesn't know the law and/or the
facts. So everything I'm going to learn about Sam, the museum, etc., has to be
explained to me in this paper. If it's not explained here it doesn't exist.
The other half of my mind is sort of peering down on me, with the rules in
the law understanding what's going on, so I can appropriately grade the exam.
But that's a great opening section.Good duty duty is the first element. Now I'm
gonna be kind of reading like the way I would normally read I'm not going to
just read everything verbatim because that's not how I do it. Requires legally
recognized relationship yep it looks good. Warranting the defendants found yep
it's fine. That's really what I'm kind of going in my mind through a checklist.
Okay so duty what's the rule for duty. We've got some analysis here. Excellent.
Here Sam as a lawful visitor of the museum so here's an invitee
therefore he has a duty to the museum as a as a guest. So one of the things that
we need to think about when we're doing this it's oh I'm I'm going well wait a
second the rules for trespasser, invitee, and licensee. Those are the
duties owed by the landowner not by the person visiting or on the land. So the
student here has a little bit of confusing confusion yes he's an invitee
but that's irrelevant because we're gonna look at what he did wrong not what
the landowner did wrong. So we'll keep reading but already I see there's a
little bit of confusion here concerning the duties owed by the land owner.
His duty is going to be one of reasonable care, regardless. So let's see so he has a
duty to the museum as a guest although Sam only intended to see the museum
until the presidential debate started. It's irrelevant as a general person has a
duty to act as a reasonably prudent person. There we go that's really the
right standard to act reasonably. Sam is a no exception. Good.
So his duty is to act reasonably. Now let's see if he breached his duty.
Second element: breach fails to meet the standard of care, good. All right can be
determined by direct evidence or circumstantial that's irrelevant. I mean
here we have direct evidence we know how the thing broke so this whole idea of
it's too much. I mean it's not wrong but I'm just ignoring it because it's
just not relevant for what I'm looking for. An inference again it's irrelevant I
don't care about inferences here in this case Sam saw a hand rail going from the
second floor to the first floor and decided to slide down the rail.
Small typo I kind of ignore that if I start seeing more typos I start paying
attention. The occasional typo it just doesn't matter. This is not
reasonable for someone to do in a business establishment. So why? I need
to know why. This student didn't go enough. Did he just start with causation?
Okay they moved to causation. So here remember for breach of conduct we
talked about a breach of duty. You should have discussed a little bit about
a little bit deeper. You could have used a, sort of a, cost-benefit analysis like
you saw in the Learned Hand case. Right, the U.S. versus Carroll towing where it's P
is less than P times L. mean you don't need to have that formula but you have
to have the thought process behind it. That yes, it's a business, you have
expensive paintings, the likelihood of something breaking is really high.
It's just not what's done right there need to be a little bit more. Here this is very
this is too much of a conclusion not enough analysis under breach of duty we
really need to know why he didn't I don't think you needed much more but you
needed a little bit more than what this student provided. All right actual cause.
Third element good. Proving the defendants culpable conduct was the factual cause.
There are two tests. You don't need to list both both tests in fact by listing them you
start creating some confusion about my mind because you only use one or the
other. But let's see what he does. The but-for test, substantial factor. Ah, if
there's only one defendant and cause the but-for test is used. If they're
multiple great, good. So they've just been very thorough, probably didn't need
to but sometimes it's better to be more careful.
I'm not marking them down for being overly cautious but on a timed exam
you always have to think about what do you really need. Here Sam is the only
reason that the painting was broken therefore the but-for test is
appropriate. But-for Sam sliding down the handrail and falling into the
painting the painting would not have been destroyed. Good! That's a
great but-for paragraph. Proximate cause is the fourth element deals with
foreseeability in order for a defendant to be the proximate cause required that
their conduct not be too attenuated in order to constitute liability.
Three tests, boy this is going way deeper than is necessary for proximate cause.
Keep in mind that when something is obviously the proximate cause you only
really talk about proximate cause in detail when something is unforeseeable.
When something is clearly foreseeable you just need four or five sentences and
you move on. So I already see here the student has gone way with it. They really
don't understand how it works that's fine they're kind of just working
through each of the forseeable aspects.
Foreseeable plaintiff. And at this point I'm just skipping cause this is just a
sort of irrelevant. Foreseeable type of harm. Okay, he's mentioning a few things
here that's fine and there are of course no superseding intervening forces.
That's just irrelevant you're just losing time the student lost four or five
minutes? This just was not necessary. Just a few sentences explaining
foreseeability and moving on. Damages because as you see the design of the exam it's
really pushing you towards vicarious liability. The negligence is very obvious
you just needed something for each of the elements and then moving to the real
issue which is going to be respondeat superior and frolic and detour.
But let's keep going damages fifth category as long as they
are reasonable suing for the painting, two hundred thousand, while large its
provable. Bingo. Okay good this was a good basic negligence paragraph. I mean or
essay. Other than breach of duty, there should have been a little bit more there.
Now let's move on to vicarious liability. Let's see what the student says. All right
let's start talking about vicarious liability. Let's see the issue is whether
the post newspaper will be liable for Sam's negligence when he acted
negligently and destroyed the museum's painting. Generally a good statement.
The problem is, I as a reader, don't know who this post newspaper is and why they
would be liable for Sam's negligence. So hopefully very quickly the student will
explain that to me because at this point I don't know who they are. Probably
should have put something, whether Sam's employer, the post newspaper will be
liable for his negligence. Something that explains to the reader what's going on.
Let's keep going. Vicarious liability is a form of liability which an employer
can be made liable for the tortious acts of their employees. Yes, if they are
acting within the scope of their employment. The scope of the employment is a
crucial aspect of this tort, requires an employee not deviate substantially from
the work for personal reasons, which would be considered a frolic. Frolics
negate an employee's vicarious liability however if an employee only
deviates slightly for a reasonable amount of time for personal purposes
then this is classified as a detour and the employer is still liable. So the student
here is sort of conflating two concepts. You have respondeat superior as one
concept and then frolic and detour being sort of an exception to the rule would
have been better for the student to have broken both of these out. I think we're
going to see is both discussions sort of mixed together which I think it's going
to make it a weaker answer. Could have been stronger. Remember any time you have
a separate distinct legal concept even though related to something else
talk about it separately. All right here Sam is an employee of the post newspaper
and assigned a job of covering. Okay, so now the student has sort of left the
IRAC format. If we're talking about respondeat superior I would expect the
first issue under respondeat superior is determining whether he's an employee.
Then sort of going into it. I'm just getting narrative here it was
on Friday 8:00 to 10:00 Museum 7:00 to 10:00 boy these are coming right out of
the facts but not being tied to any legal concept. So this is really a narrative.
I'm not sure why it's here. It's not connected but let's keep kinda
going down. This was Sam's decision, all from the facts. I mean again they
need to be in the essay but you have to explain why the facts were there, why
they're relevant. Okay so he's just quoting from the question.
Ah, okay here we go we get to our own. Was not quite a deviation from his work that his
employer would expect of him. Certain things are expected deviations, like
taking breaks for food, restroom, however museum is not one of them. Therefore it's likely that
Sam's trip to museum would be used as a frolic thus eliminating the Post's
liability. In conclusion it's unlikely that the museum will be successful in a
cause of action for vicarious liability against the Post. So the student just
sort of asserted here Sam's an employee, never ties it to respondeat superior.
Again it wasn't length, he didn't have to be lengthy, just
explaine the rule that applies when a employee is acting within the scope of
their employment. Sam was sent down there, he was an
employee, and he was there to cover a job. So he was in the city based on on his
employer's business and then go into the frolic in each one. And actually I didn't
care which way you went on this I mean you could have argued that it was a
frolic or a detour. I didn't care but you did have to tie it in a little bit
better than what's going on here. So it's okay it's all there sort of jumbled.
Could have been much better because the student was sort of combining both concepts
together. All right let's see what else he does goes into comparative negligence.
There is no comparative negligence here right. Not being tested so the student
was just trying to be overly careful. I ignore these things. I don't take points
off so I'm just kind of scrolling. Wasted time. What else here.
Yeah, none of that was met so the whole affirmative defense was irrelevant.
I kind of look through them sometimes to see if I missed an issue, but here I
don't think this is a valid affirmative defense. So anyway that is this essay so
once I do that I by the way I show you very quickly my grading sheet. Grading
sheets are gonna vary from Professor to professor so here's mine. I tend to be
very careful in my grading. A lot of people just give points. I kind of go
through here I hear him you'll see the elements. If they were available then I
sort of check off one of these boxes and those equate to points. Here's my
analysis the kind of discussion I was looking for and I'll actually have this
open while I'm grading and I'll check off these boxes. And then you'll see the
spreadsheet over here on the right. Certain points are given depending on
which box I check off. I grade for organization so that's important to me.
If it's well organized not so well organized and again you get different
points I'll just click on one of these boxes and and that equals different
points here. Again that's been a very from prof to prof. And then the same
thing respondeat superior here's the rule statement that allows me to stay
focused and to know what rule I'm looking for, the
facts I'm looking for, conclusions I'm looking for, and by the if the student
makes a good case different from mine they still get the points. This is just
sort of my initial reaction what I think students should write. If a student goes
in a different direction but they're accurate they of course get full points
for their their writing. And there's frolic and detour there the rule
statements, the facts, and then a conclusion.
You see I thought this was more of a detour not a frolic but again if the
student made the other case that was fine - they just had to to be convincing.
All right that is this essay question.
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