Elements of Negligence

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 ticket.

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