Rule Paragraphs 2010 Prior NY Bar Exam

Question 1

What is the first thing to determine when you have a negligence claim essay on the Bar exam

Answer 1

Determine which element of negligence the examiners are focusing, such as, whether the fact pattern is about:

1- did the defendant owe a “duty,” and explain the duty element

2- is the questions focusing on “causation” and is the plaintiff’s injuries a proximate cause of the plaintiff’s injuries

3- Consider “breach” of duty

4- and essay about “damages,” which is the “pure comparative negligence” essay portion

Question 2

How to write up: The issue is whether a defendant (add name) owes a “duty” to the plaintiff (add name)

Answer 2

In a negligence action, the first element to establish is whether the defendant owes a duty to the plaintiff. The question is whether the plaintiff is a foreseeable plaintiff and, if so, what is the standard or care owed?

Question 3

School District - Teachers Duty of Care

Answer 3

The teachers supervising students owes a duty of care towards the students, and to supervise as “an ordinary prudent person” would under similar circumstances. The main purpose for the presence of the teachers and aids is to supervise the children while they are at school (school yard, playground, trip, park, etc.) Therefore, the teachers and aides owe a duty to the children while the children are under their supervision

Question 4

Is the school district liable for the torts of the teachers and aides employed by the school district

Answer 4

A principal is vicariously liable for the negligence of its agents while the agent is performing for the principal within the scope of the relationship. Here, the teachers are on duty and performing their jobs as employees of the School District so the School District is vicariously liable. A breach of duty on the part of the teacher or aids is vicariously attributed to the School District

Question 5

Breach of Duty

Answer 5

In this case, the teachers clearly breached the duty to supervise, the student, in that the (act committed or failure to act) conduct …

This duty and breach of duty on the part of the supervising teachers is attributable to the teachers’ employers, the School District. The School District clearly owes a duty to the children entrusted in their care

Question 6

The issue is whether the conduct (subsequent tortfeasor) was a “superseding cause of the plaintiff’s injuries or a foreseeable result of the negligence of the original tortfeasor

Two-part causation

Answer 6

To establish causation, the conduct must be the factual cause (“but for cause”) as well as the legal or proximate cause of the plaintiff’s injury. The defendant’s failure to act reasonable (put the act in) was the factual cause of the plaintiff’s injuries because “but for” this conduct, the subsequent tortfeasor would not have been able injury the plaintiff

The original tortfeasor is also the proximate cause. The plaintiff has a duty to supervise the children to make sure no harm comes to them. Letting children out of the park (unreasonable supervision), exposes the children to harm of this type (caused by the subsequent tortfeasor), along with harm of many different types. Leaving the student behind, knowing she would have to get home by herself, was also conduct that could foreseeably lead the plaintiff to being attacked by a stranger

Question 7

Superseding acts, tortious intentional acts by a third party

Answer 7

The tortious intentional acts of a third party are generally superseding causes that wills serve to cut off liability. However, where the defendant’s conduct increases the likelihood that the third party’s intentional tort will occur, the third party’s intentional tort will occur, the third party’s conduct is foreseeable and not a superseding cause.

Question 8

Determination of the conduct of a minor child being comparatively negligent

Answer 8

Here, the plaintiff’s conduct may be considered contributorily negligent but that is an issue to be decided by the jury, and the defendant has a right to have the minor-plaintiff’s conduct considered by the jury

Question 9

As New York is a comparative fault state

Answer 9

Plaintiff’s (or Name) contributory negligence may be considered and, if the trier of fact finds that the plaintiff to be partially at fault, the plaintiff’s award would be reduced proportionally

Question 10

The issue is recovery for a doctor’s malpractice (negligence)

Answer 10

A plaintiff can recover under medical malpractice against the doctor under the theory of negligence. The plaintiff will need to make out a prima facie case (duty, breach, causation, harm) elements.

Question 11

Medical Malpractice when a foreign instrument is left behind unintentional

Answer 11

In this case, the plaintiff will be able to prove defendant’s breach of his physician duty of care by using “res ipsa loquitor”. Under res ipsa loquitor, a breach is assumed where the harm is so obvious that the plaintiff is relieved from having to prove the defendant breached and where the instrumentality was under the defendant’s control. Here, a sponge (foreign object) left in the patient’s body is an obvious breach

Question 12

Medical malpractice claims have a statute of limitations

Answer 12

The usual medical malpractice statute of limitations is two and one half years from the date of the procedure (injury, accrual date) but with res ipsa, the statute of limitations is extended and does not begin to run until the plaintiff discovered facts, which caused him to know (or should have known) of the injury. There the plaintiff discovered the sponge (foreign object) [add date] when she was experiencing abdominal pain, so the statute of limitations will run from the discovery date, and not the accrual date

Question 13

A doctor may try to argue what type of defenses in a medical malpractice claim

Answer 13

The doctor may try to argue that the statute of limitations has run and the plaintiff’s claim is time-barred.

Question 14

Rebuttal to the affirmative defense of statute of limitations includes

Answer 14

“Continuous treatment” doctrine, which states that where a plaintiff is continuously treated for the medical reason related to the claim, their statute of limitations runs from the last date of treatment.

A minor that is harmed, tolls the statute of limitations, so the statute of limitations of her claim would be tolled until the minor’s 18th birthday (up to a maximum of 10 years for medical malpractice), thus the claim would not be time-barred, and the doctor has no other defenses.

Question 15

The issue is whether a school can be held liable for negligent supervision of its minor students.

Answer 15

A cause of action for negligence exists when there is a duty, a breach, causation (actual and proximate) and damages (injury). Here, the School District (“school”), through its teachers and aids, owed a duty to its students to exercise reasonable care in the student’s supervision. A duty to reasonably supervise exists on any school property and this duty is exemplified when the school takes its students off school grounds.

Here the teacher breached her duty to reasonably supervise the students when she allowed (add the conduct). The school also breached its duty when it allowed the school bus to leave the park without the student on board. Therefore, the school owed a duty to the student and breached this duty when it failed to reasonably supervise her.

Question 16

Vicarious liability

Answer 16

The School District is vicariously liable for the teacher’s negligent act because there is an employer-employee situation and the teacher was acting within the scope of her employment. An employer may be held vicariously liable for the negligence of its employees if the employee acts within the scope of its employment. Here, supervising the children during the field trip was the teacher’s duty. The field trip was organized by the school and was an official school activity. Therefore, the teacher was acting within the scope of her employment when she breached her duty to the student and the school may be held liable for her negligence

Question 17

Note that the fact that the teacher told the minor student to do something, be back at a certain time

Answer 17

does not absolve liability. The negligence occurred when the teacher allowed a 10 year old to cross the street to go to a fast food restaurant. In any event, the instruction does not release the school from or satisfy its duty to the minor student

Question 18

The issue is whether the subsequent tortfeasor’s criminal act was an intervening unforeseeable cause of the plaintiff’s injuries such that it releases the original tortfeasor from all liability

Answer 18

To succeed in a negligence case, the plaintiff must demonstrate duty, breach, causation, injury (damages). A person’s breach must be both the actual and proximate cause of the plaintiff’s injury. Factual cause is the “but for” cause (i.e., but for defendant’s negligence, plaintiff would not have been injured). The proximate is the legal cause. This means that the injury must have been foreseeable to the defendant as a result of his breach. Any act that occurs after the defendant’s breach that contributes to the harm is an intervening cause. If the intervening cause was unforeseeable to the defendant and resulted in an unforeseeable injury to the plaintiff, it is considered a superseding cause. A superseding cause will absolve the defendant’s liability to the plaintiff, at the point of the intervening cause, however, the original tortfeasor will be liable for any injuries prior to that point. Frequently intervening criminal acts are considered superseding causes. But criminal acts are not superseding if the defendant should have anticipated them or if the defendant’s conduct makes the criminal act more likely to occur.

Question 19

The school’s negligence may also be considered the proximate cause for an intervening / superseding act

Answer 19

It was foreseeable to the school that leaving the park without a student might result in her injury. Leaving a 10 year old alone at a park is an act that has foreseeable negative consequences. The subsequent tortfeasor’s act was the direct cause of the plaintiff’s injury, but this type of injury would not have been unforeseeable to the school. Because the school’s act of leaving the park without the student made this criminal act more likely to occur, the assault is not a superseding cause that will release the school liability.

Question 20

The issue is whether a child can be capable of negligent conduct such that it may be used as an affirmative defense in a negligence action

Answer 20

Children are capable of negligence but are held to a different standard than adults. Children are held to the standard of behaving as a child of like age, experience, and intelligence. If a child is engaged in an adult activity (driving) he may be held to a higher adult standard with respect to that activity.

Note that even if the child-plaintiff deviated from the standard was considered reasonable, she can still recover under the pure comparative negligence approach, which was adopted by New York. So all that the school’s affirmative defense is capable of is reducing its own liability

Question 21

Medical malpractice

Answer 21

As a treating physician, Dr. X owed a duty of care in performing the surgery, which definitely included not leaving any unnecessary “foreign objects’ in his patient’s body.

Question 22

The only problem with a plaintiff asserting a medical malpractice action is that the statute of limitations for medical malpractice

Answer 22

The only problem with a plaintiff asserting a medical malpractice action is that the statute of limitations for medical malpractice is two and one half years, as opposed to all other malpractice actions, which have a three-year statute of limitations. Although the “continuing treatment” theory may have saved the plaintiff’s action from being time-barred, the last visit was unrelated to the cause of action or injury .

Question 23

Under the continuing treatment theory

Answer 23

if a patient continues her treatment with the doctor it would be the last visit (treatment) for the injury sustained that would start the running of the statute of limitations against him. However, that treatment must be related to the underlying cause of action, here the surgery. The continuing treatment is not applicable and the claim time-barred.

Question 24

Foreign objects exception

Answer 24

The foreign objects exception, which gives a year from the discovery of the foreign object’s discovery. Thus, as the “foreign object,” the (item left in the patient) was not discovered until [date], her action under this exception is still timely and thus may be asserted against the doctor.

Question 25

Minor’s exception for medical malpractice

Answer 25

A minor has the statute of limitations on her claim tolled until her 18th birthday, however, there is a ten year cap on the tolling of medical malpractice claims, so the plaintiff had until age X to timely commence her action.