Faris Young

November 9, 2022

Advance Bar Studies Exam

Essay 1 – Torts

Park-Rite, Inc. – Move for Summary Disposition

The court should deny Park-Rite, Inc.’s motion for summary disposition because there
are genuine disputes as to material facts of whether their employee, Sid, breached his duty of
care. For a negligence claim to be successful, Harriet will have to prove five elements: (1) duty,
(2) breach of duty, (3) factual cause, (4) proximate cause, and (5) damages.
The first element of negligence is duty. Every person owes the duty of a reasonable
prudent person under similar circumstances. Here, a special standard of care is applied because
there is an applicable statute. The court can use the statute if the plaintiff can show two things:
(1) that the plaintiff is in the class of persons protected by the statute and (2) the harm that
occurred if the type of harm the statute was meant to prevent. If the plaintiff can prove these
two things, then the defendant’s violation of the statute is treated as negligence per se. Here, the
class of persons protected by the statute could be argued to be the public at large, because when
motor vehicles are left unattended in any place assessable to the public people are likely steal
cars and take joyriders and then they are likely to drive negligently. The type of harm the statute
is meant to protect is harm to other people near the stolen car including those on the road or
possibly pedestrians on the side of the road. Here, Harriet was a pedestrian who was badly hurt
after Jones took Jill’s car for a joyrider and had a collision with Harriet. Since the plaintiff was
in the class of plaintiffs and the harm was in the class of harm, negligence per se is proved,
which means Sid’s action of leaving the car unattended without locking the ignition or removing
the keys is presumed to be negligent.
The second element of negligence is breach. Since the statute was applicable, the
element of breach is eliminated since the law was violated which the court looks at as negligence
being implicated.
The third element of negligence is factual cause. To test factual cause, the normal test is
the but for test. This test asks, but for the defendant’s negligence, would the harm have
occurred? If the answer is yes, then the defendant was not the factual cause of the harm. If the
answer is no, then the defendant was the factual cause of the harm. Here, the but for test would
fail because there are two negligence defendants. Jill was instructed by Sid to leave the keys in
the car and open the door but when she did as she was instructed, she also violated the statute.
When there are more than two negligent defendants, the test changes to the substantial factor
test. This test states that when something is a substantial factor it could have caused the harm all
by itself. Here, by Sid violating the statute, his negligence was a substantial factor in the harm
caused to Harriet. Therefore, Sid was the factual cause of the harm to Harriet.
The fourth element of negligence is proximate cause. To test proximate cause, the court
asks whether the harm to the plaintiff was foreseeable and within the scope of liability. There
are two types of causes: direct and indirect. A direct cause is when defendant commits the
breach himself and plaintiff suffers right away. An indirect cause is when defendant commits the
breach, other events take place, and then plaintiff suffers a harm. Here, Sid was the indirect
cause of Harriet’s harm. It was foreseeable that by violating the statute and leaving a car
unattended in a place accessible to the public, that someone would steal it. That is why the
statute is in place. Therefore, Sid was the proximate cause of the harm to Harriet.
Faris Young
November 9, 2022
The fifth element of negligence is damages. The test for damages is that you take the
plaintiff as you found him (egg-shell skull). Here, Harriet’s damages are from Jones and
Harriet’s collision in which she was badly injured.
All in all, the court should deny Sid’s motion for summary judgment because there are
genuine issues of material fact in each element against him and a reasonable jury could find that
he was negligent. Since Sid is the employee of Park-Rite, Inc. his negligence gets imputed to his
employer.
The employer could argue that since Sid was outside the scope of his employment when
the answered a personal phone call on the job, they are not liable.

Jill – Move for Summary Disposition

The court should deny Jill’s motion for summary disposition because there are genuine
disputes as to material facts of the elements of negligence. Jill also violated the statute by
following Sid’s instructions to leave the keys in the ignition to the car. A reasonable jury could
find that once Jill got to the parking garage, and followed the instructions of the Park-Rite
employee, she was no longer responsible for her car. If a reasonable jury could disagree, a
motion for summary disposition cannot be granted.

Essay 2 – Real Property