The Balanced Approach


Be a Bar Exam Warrior

Memory lane...

Remember when we first met? And we learned about the homeowner who slept with a handgun on his bedside table even though there was a statute that required gun owners to keep their guns safe and secured in a lock box?  

Remember in negligence that plaintiffs must be able to explain the following:

1. What is the applicable standard of care, is it the reasonable person standard or something higher and "special" (such as owner/occupier, negligence per se, professional...)

2. Was the plaintiff within the zone of danger i.e. was the plaintiff foreseeable?

3. Did the plaintiff breach his/her applicable standard of care?

I would always, discuss both the reasonable person standard of care (which is the default standard) and any special standard. (In a well pleaded complaint, it is likely a plaintiff would set forth both theories in hopes that one of them will stick).  Start with the special standard (rule it in or rule it out).  Then do a quick IRAC under the reasonable person standard and discuss breach, causation and damages.

Also...under causation be sure to go down your issue spotting check list to see if you should rule in or rule out any intervening or superseding acts that could potentially break the chain of causation.  

Amy Parekh