TORTS — ANNOTATED MODEL ESSAY
This essay models a negligence fact pattern layered with negligence per se, a rescuer, and proximate-cause limits. Read the black text as a timed answer; the gold boxes explain why each move earns points.
Driver was texting while driving 15 mph over the limit in a residential zone. A state statute prohibits both speeding and texting while driving and recites that its purpose is "to protect persons and property on or near public roadways." Driver ran a stop sign and struck Pedestrian, who was lawfully crossing in a crosswalk. Pedestrian suffered a broken leg.
Rescuer, a bystander, ran into the street to pull Pedestrian to safety and was clipped by a second car, suffering a concussion. Meanwhile, the collision knocked over a utility pole; an hour later, a downed wire sparked a small fire that damaged Owner's nearby fence.
Pedestrian, Rescuer, and Owner each sue Driver. The jurisdiction follows pure comparative negligence and has adopted negligence per se. Assume Pedestrian was looking at her phone and did not see Driver approach.
Analyze Driver's liability in negligence to Pedestrian, Rescuer, and Owner, and address any defense.
Model Answer — with annotations
Black text is the answer you could realistically write under timed conditions. The gold boxes explain why each move earns points.
I. Negligence — The Prima Facie Case Against Driver
To recover in negligence a plaintiff must prove duty, breach, actual cause, proximate cause, and damages. Driver, operating a vehicle, owed a duty of reasonable care to all foreseeable plaintiffs who might be harmed by his driving, including pedestrians and nearby property owners. The standard is that of a reasonably prudent driver under the circumstances.
II. Breach via Negligence Per Se
Under negligence per se, a statute's standard replaces the common-law reasonable-person standard where (1) the plaintiff is within the class the statute was designed to protect, and (2) the harm is of the type the statute was designed to prevent. The texting-and-speeding statute exists "to protect persons and property on or near public roadways." Pedestrian (a person on the roadway) and Owner (property near the roadway) fall squarely within the protected class and harm. Driver violated the statute by speeding and texting, and ran a stop sign. The violation is therefore negligence per se, establishing breach as a matter of law (absent an excused violation, of which there is none).
III. Pedestrian's Claim
Breach is established per se. Actual cause is satisfied under the but-for test: but for Driver's texting and speeding, he would have stopped and not struck Pedestrian. Proximate cause is satisfied because a pedestrian in a crosswalk is the most foreseeable victim of careless driving; the harm is direct and within the scope of the risk. Pedestrian suffered a broken leg, satisfying damages. Driver is prima facie liable to Pedestrian.
IV. Comparative Negligence Defense Against Pedestrian
Driver will argue Pedestrian was contributorily negligent because she was looking at her phone and failed to see Driver. A pedestrian owes a duty of reasonable care for her own safety, and inattention while crossing can be a breach. However, the jurisdiction follows pure comparative negligence, so Pedestrian's fault does not bar recovery; it merely reduces her damages by her percentage of fault. Even a Pedestrian found, say, 30% at fault recovers 70% of her damages. Pedestrian's claim survives, reduced proportionally.
V. Rescuer's Claim — "Danger Invites Rescue"
Driver will argue Rescuer's injury was unforeseeable or that Rescuer assumed the risk. But under the rescue doctrine, "danger invites rescue": a tortfeasor whose negligence imperils a victim owes a duty to a foreseeable rescuer and is liable for injuries the rescuer suffers in a reasonable rescue attempt. A bystander rushing to pull an injured pedestrian from traffic is foreseeable, so Driver's negligence proximately caused Rescuer's concussion. Rescuer's voluntary intervention does not break the causal chain; only a wanton or reckless rescue would. Rescuer may recover from Driver.
VI. Owner's Claim — Proximate Cause and Intervening Forces
Driver's negligence was the actual cause of the fire: but for the collision, the pole would not have fallen and the wire would not have sparked. The closer question is proximate cause, given the one-hour delay and the intervening fire. The test is foreseeability. Knocking over a utility pole in a collision is a foreseeable consequence of careless driving, and fire from a downed live wire is a foreseeable result of a toppled pole — it is the very kind of harm that makes downed wires dangerous. The intervening fire is therefore a foreseeable (dependent) intervening cause that does not cut off liability; it is not a superseding cause. Owner's fence damage is recoverable.
Had the intervening force been extraordinary or unforeseeable — for example, an arsonist deliberately igniting the fence after the pole fell — it would be a superseding cause relieving Driver. On these facts, however, the fire flows naturally from the hazard Driver created, so liability stands.
- Lays out all five negligence elements and a clear duty/standard before applying them to each plaintiff.
- Runs the full negligence per se test, matching the statute's protective purpose to each plaintiff's class and risk.
- Keeps actual cause and proximate cause distinct, using "scope of the risk" and foreseeability framing.
- Correctly applies pure comparative negligence to reduce — not bar — Pedestrian's recovery.
- Resolves Rescuer's claim with the rescue doctrine and its reckless-rescue limit.
- Distinguishes a foreseeable intervening cause from a superseding cause with a concrete counterfactual, securing Owner's recovery.
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