Elements of Negligence

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Review the fact pattern below.

  • Prepare a memorandum of not less than 3, but not more than 5, pages that:
    • Provides a brief summary of the relevant facts necessary for the analysis of the issues required to be analyzed in this memorandum
    • Provides an analysis of whether there are sufficient facts to support a finding of negligence – address all elements of the tort in your analysis
    • Provides an analysis of the type of damages that may be available based upon the fact pattern
    • Provides an analysis of viability of any affirmative defense that may be available to the defendant

Fact Pattern

Car Accident Du Jour

You work for a personal injury
firm that specializes in car accident cases. Your supervising attorney hands
you a new file and tells you to review the attorney notes from the initial
consult, the police report and medical records in the file. He wants you to
write him a memo outlining whether all elements of the negligence can likely be
established, the type of damages apparent from the file and any defenses that
may be available to the defendant. The
attorney reminds you that the state has adopted the 50-50 Approach to
Comparative Negligence.

You dig right into the file. The
client is John. John was driving home
from work when another driver who failed to stop at a red light clipped him.
John saw that the driver was going to run the red and tried to stop, but the brakes
on his car were worn out. The brakes were not defective, just old. He knew they
were not working properly but was waiting for his next paycheck to get them
replaced. He tells you that if the brakes were not worn out, he probably could
have avoided the collision. The body shop John went to estimates that it will
costs $7,750 to fix John’s car.

Upon contact, John’s airbag
deployed upon impact, which was a good thing. He forgot to fasten his safety
belt. The side impact did cause his left side to slam against the door, which
may not have happened if he was wearing a seat belt. John suffered some severe
bruising on the left side of his body but no broken bones. He also has been experienced
soft tissue injury to his back and neck. At the ER, he was given a prescription
for pain medication for some mild pain he was suffering and was discharged. He
did miss a couple of days of work and is seeing a chiropractor for the injury
to his neck and back. The medical records indicate that John should make a
complete recovery with no permanent impairments. His medical insurance is
covering the medical bills although he has some out of pocket expenses.

A police officer arrived on the
scene and took a statement from both John and the other driver, Ben. The police report reveals that the officer
ticketed Ben, the other driver for failing to stop. John did not receive a


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