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Lesson Topic: Model Lesson Plan - Torts: The Elements of Negligence
I. GOAL: To help students gain a better understanding of the concept of negligence.
II. OBJECTIVES:
A. Knowledge Objectives – As a result of this class, student will be better able to:
- Understand the basic difference between civil and criminal laws.
- Understand the basic elements of negligence and defenses thereto.
- Understand the factors that courts consider when determining whether a duty existed and whether it was breached.
B. Skills Objective – As a result of this class, students will be better able to:
- Apply the elements of negligence to everyday factual situations.
- Become better advocates by formulating and articulate arguments.
- Avoid situations in which their actions could give rise to liability.
C. Attitude Objectives – As a result of this class, students will be more likely to feel:
- That there is no bright line rule for determining negligence.
- That careless or reckless conduct can give rise to substantial liability.
- That the legal system recognizes a flexible standard of conduct based on what a reasonable person would do in like situations.
III. CLASSROOM METHODS
A. Introduction – Brief Lecture:
- Inform students that today’s class session will introduce them to torts and the concept of negligence and that they will be required to turn in their lecture notes at the end of class. We’ve spent a number of class sessions talking about criminal wrongs, which are prosecuted by the state on behalf of particular people and society at large. With torts, we are dealing instead with civil wrongs committed against individuals. With civil wrongs, the individual harmed is almost always going to be the plaintiff, though family members of injured (often deceased) persons may also sue on behalf of loved ones. There is not a prosecutor, like there is with criminal suits. Rather, the harmed individual or a family member brings a civil suit.
- There are generally 3 different types of torts: Negligence, Intentional Torts, and Strict Liability. Today we are only going to focus on Negligence, which is an unintentional tort. Other types of torts will be discussed in future classes.
- Introduce the topic of negligence with the following scenario:
a. Tony, an 18 year old high school student is listening to smooth jazz on his I-pod while driving. Tony doesn’t like the track he is listening to, and looks away from the road to find something smoother. He fails to see the car in front of him stop, and crashes into it. The woman in the car suffers a broken leg, and sues Tony to collect for her injuries.
- Ask the students: a. “If the woman wants to be compensated for her injuries, will she file a criminal or civil lawsuit?” (Answer: civil. Criminal suits are brought by the state/prosecutor, while civil suits are brought by individuals against someone who they think has wronged them.) b. “Who is the plaintiff?” (Answer: the injured woman) c. “Who is the defendant?” (Answer: Tony) d. “What can the woman recover?” (Answer: money to compensate her for her injuries. There is no jail time at stake in civil suits.) e. “What must she prove?” (Answer: That Tony was negligent in driving, under the four elements of negligence, to be discussed shortly, by a preponderance of the evidence) i. Preponderance of the evidence requires greater than 50% likelihood of causation. So, 51% would work.
B. Elements of Negligence:
- Put up overhead explaining the elements of negligence: a. Duty : The defendant owed the plaintiff a duty of care. The duty of care owed is determined by a reasonable person standard. A reasonable person would consider: (1) the burden of taking precautions; (2) the likelihood of harm; and (3) the seriousness of the harm that might be caused. b. Breach : The defendant’s conduct violated that duty (the defendant did not act reasonably) c. Causation : The defendant’s conduct caused the plaintiff’s harm: i. Cause in fact = actual cause. ii. Proximate cause = harm was foreseeable. d. Damages : The plaintiff suffered actual damages i. Tort law is concerned with restoring the plaintiff to his or her position, had the injury not occurred.
- Ask students to apply the elements of negligence to the I-pod facts. a. “What was Tony’s duty to the woman?” (Answer: To drive in a reasonable manner, which would include being alert and not listening to music with headphones.) b. “Did Tony breach this duty?” (Answer: Yes. Tony breached this duty by driving while listening to an I-pod with headphones and by looking away to fiddle with the music.) c. “Did the Tony’s conduct cause the woman’s injuries?” (Answer: Yes. The harm would likely not have occurred if Tony had been paying
C. Debrief:
- Ask the students if there are any other points they want to make or questions that they have.
- Ask the students what they think of the reasonable person standard and the outcomes of the cases discussed.
- Review the elements of negligence again briefly. Remind students that it is not always easy to determine what duties individuals have to others.
- Inform students that we will be learning more about other types of torts in more detail next class, as well as how to measure damages.
- Remind students that we will be practicing oral advocacy skills in preparation for mock trial.
- If the class as a whole correctly decided a majority of scenarios, inform them that we will not have a quiz on the material.
- If the class as a whole did not correctly decide a majority of scenarios, inform them that we will have a quiz on the materials next class.
IV. EVALUATION
A. Student participation in activity and debriefing. B. Class knowledge of the material, based on the tally of correct scenarios. C. Student advocacy skills.
Elements of Negligence
Duty : The defendant owed the plaintiff a duty to act
reasonably. A reasonable person would consider (1)
the burden of taking precautions; (2) the likelihood
of harm; and (3) the seriousness of the harm.
Breach : The defendant’s conduct violated that duty
(the defendant did not act reasonably).
Causation : The harm would not have occurred
without the defendant’s actions. Requires proof of
“Cause in Fact” and that the harm was foreseeable
(“Proximate Cause”).
Damages : The plaintiff suffered actual damages
(medical costs, lost wages, pain and suffering, etc.).
Scenario 1
Taylor Eshoo, a Korean immigrant who can’t
read English, steps down from an elevated rail
platform in Chicago and urinates directly onto
the railroad tracks below, which carry 600 volts
of electric current. The stream of urine conducts
the electric current directly from the tracks to
Mr. Eshoo, killing him almost instantly. Mr.
Eshoo’s wife (Plaintiff) sues the City of
Chicago (Defendant) on behalf of her late
husband, arguing that the City was negligent in
failing to post a warning sign in Korean that the
tracks were electrified.
Scenario 2
For a substantial fee, Volcanoes Unlimited takes
people on tours of active volcanoes. Before
participating in a tour of Mt. St. Helens,
customer Adam Karl signs a form providing that
he assumes “all risks and responsibilities
surrounding my participation in this activity.”
During the tour, the volcano erupts, spewing hot
magma all over the tour bus and its passengers,
including Mr. Karl. Volcanoes Unlimited knew
that the mountain was particularly likely to
erupt that day, but conducted the tour anyway.
Mr. Karl (Plaintiff) sues Volcanoes Unlimited
(Defendant) for his injuries.
Scenario 4
Mr. Potter is a patient of Dr. Moore, a
psychologist. Potter informs Dr. Moore that he
intends to kill Ms. Tatiana Johnson, a girl who
has refused Potter's obsessive romantic
advances. Dr. Moore asks the police to arrest
Mr. Potter. Potter is briefly detained but soon
released. Neither Tatiana nor her parents receive
any warning of Potter’s threat. Several months
later, Potter kills Ms. Johnson. Ms. Johnson’s
parents (Plaintiffs) sue Dr. Moore (Defendant)
for failing to warn them or their daughter of the
threats against Tatiana’s life.
Scenario 5
An eleven year-old boy (Jake Putney) lightly
kicks a fourteen year-old classmate (Eddie
Vosburg) in the shin just below the knee,
intending to embarrass him but not to cause
physical harm. Unknown to Putney, Vosburg
had previously sustained an injury to the same
area during a sledding accident. The kick
aggravates the existing wound, and as a direct
result, Vosburg permanently looses the use of
his leg. Vosburg (Plaintiff) sues Putney
(Defendant) for his injuries.
Scenario 7
A man is standing on a pier. In the water near
the end of the pier, a child is drowning. On the
pier, next to the man, is a life preserver attached
to a rope. The man need only kick the life
preserver into the water to save the drowning
boy. But he doesn't. The man just sits there,
smokes a cigarette, watches the child drown,
and then walks away. No one else is around to
help the child, but everything is captured on
surveillance tape and later played on the
evening news. The boy’s parents (Plaintiffs) sue
the man (Defendant) for failing to save their
drowning child.
Scenario 8
The driver of a car negligently hits a parked
truck and then flees the scene of the accident.
The driver of the truck is seriously injured and
unable to exit his vehicle, which is leaking fuel
as a result of the accident. A passerby stops to
help the injured truck driver, at which point the
truck explodes and badly injures the passerby as
well as the truck driver. The passerby (Plaintiff)
sues the driver of the car (Defendant) for
causing the truck to explode and injure him,
even though he could have avoided injury if he
hadn’t stopped to help.
Scenario 10
A 25 year-old man with a long history of
epilepsy has a seizure while driving his car on
the freeway, causing him to crash into another
car, badly injuring the driver of the other car.
The injured driver (Plaintiff) sues the 25 year-
old man (Defendant) for his injuries.
Scenario 11
A homeowner leaves town for the weekend
without covering her swimming pool. A six
year-old boy who lives next door and who has
been escorted away from the pool before,
trespasses on the out-of-town homeowner’s
property, plays in her pool without permission,
and drowns. The child’s parents (Plaintiffs) sue
the homeowner (Defendant) for failing to cover
her pool.
Scenario 3 PLAINTIFF - STELLA LIEBECK
Stella Liebeck, a 79-year-old woman, orders a cup of coffee from the drive-through window of a local McDonald's restaurant. A warning on the coffee cup’s lid indicates that its contents are “HOT” in small uppercase letters. Mrs. Liebeck then places the coffee cup between her knees and attempts to remove the lid. In the process, she spills the entire cup of coffee on her lap, and then sits in the puddle of hot liquid for over 90 seconds, causing 3 rd^ degree burns on 16% of her skin. Mrs. Liebeck (Plaintiff) files suit, accusing McDonald's (Defendant) of negligently selling coffee that was unreasonably dangerous (too hot) without an adequate warning label.
Scenario 3 DEFENDANT - MCDONALD’S CORPORATION
Stella Liebeck, a 79-year-old woman, orders a cup of coffee from the drive-through window of a local McDonald's restaurant. A warning on the coffee cup’s lid indicates that its contents are “HOT” in small uppercase letters. Mrs. Liebeck then places the coffee cup between her knees and attempts to remove the lid. In the process, she spills the entire cup of coffee on her lap, and then sits in the puddle of hot liquid for over 90 seconds, causing 3 rd^ degree burns on 16% of her skin. Mrs. Liebeck (Plaintiff) files suit, accusing McDonald's (Defendant) of negligently selling coffee that was unreasonably dangerous (too hot) without an adequate warning label.
Scenario 4 PLAINTIFFS - MR. AND MRS. JOHNSON
Mr. Potter is a patient of Dr. Moore, a psychologist. Potter informs Dr. Moore that he intends to kill Ms. Tatiana Johnson, a girl who has refused Potter's obsessive romantic advances. Dr. Moore asks the police to arrest Mr. Potter. Potter is briefly detained but soon released. Neither Tatiana nor her parents receive any warning of Potter’s threat. Several months later, Potter kills Ms. Johnson. Ms. Johnson’s parents (Plaintiffs) sue Dr. Moore (Defendant) for failing to warn them or their daughter of the threats against Tatiana’s life.
Scenario 4 DEFENDANT - DR. MOORE
Mr. Potter is a patient of Dr. Moore, a psychologist. Potter informs Dr. Moore that he intends to kill Ms. Tatiana Johnson, a girl who has refused Potter's obsessive romantic advances. Dr. Moore asks the police to arrest Mr. Potter. Potter is briefly detained but soon released. Neither Tatiana nor her parents receive any warning of Potter’s threat. Several months later, Potter kills Ms. Johnson. Ms. Johnson’s parents (Plaintiffs) sue Dr. Moore (Defendant) for failing to warn them or their daughter of the threats against Tatiana’s life.
Scenario 5 PLAINTIFF - EDDIE VOSBURG
An eleven year-old boy (Jake Putney) lightly kicks a fourteen year-old classmate (Eddie Vosburg) in the shin just below the knee, intending to embarrass him but not to cause physical harm. Unknown to Putney, Vosburg had previously sustained an injury to the same area during a sledding accident. The kick aggravates the existing wound, and as a direct result, Vosburg permanently looses the use of his leg. Vosburg (Plaintiff) sues Putney (Defendant) for his injuries.
Scenario 5 DEFENDANT - JAKE PUTNEY
An eleven year-old boy (Jake Putney) lightly kicks a fourteen year-old classmate (Eddie Vosburg) in the shin just below the knee, intending to embarrass him but not to cause physical harm. Unknown to Putney, Vosburg had previously sustained an injury to the same area during a sledding accident. The kick aggravates the existing wound, and as a direct result, Vosburg permanently looses the use of his leg. Vosburg (Plaintiff) sues Putney (Defendant) for his injuries.
Scenario 6 PLAINTIFF - FARMER BOB
Farmer Joe builds a large haystack near the boundary of his land, which borders land owned by Farmer Bob. Farmer Joe’s haystack is built without a precautionary “chimney” to prevent the hay from spontaneously igniting. Farmer Joe had been warned several times that the manner in which he built haystacks was dangerous, but Farmer Joe always replied that he would “chance” it. Consequently, the hay ignited and fire spread to the Farmer Bob’s land, burning down two of Farmer Bob’s cottages. Farmer Bob (Plaintiff) sues Farmer Joe (Defendant) for the damage to his property.
Scenario 6 DEFENDANT - FARMER JOE
Farmer Joe builds a large haystack near the boundary of his land, which borders land owned by Farmer Bob. Farmer Joe’s haystack is built without a precautionary “chimney” to prevent the hay from spontaneously igniting. Farmer Joe had been warned several times that the manner in which he built haystacks was dangerous, but Farmer Joe always replied that he would “chance” it. Consequently, the hay ignited and fire spread to the Farmer Bob’s land, burning down two of Farmer Bob’s cottages. Farmer Bob (Plaintiff) sues Farmer Joe (Defendant) for the damage to his property.
