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Bryan King
Tort Law – Negligence
Original Model Lesson Plan
90 minutes (1-2 class periods)
I.
Goals:
a. Understand the differences between criminal law and civil law.
b. Understand the elements of negligence.
II.
Objectives:
a. Knowledge Objectives – As a result of this class, students will be better able to:
i. Identify a civil case and the parties involved.
ii. Recall the elements of a negligence action.
b. Skills Objectives – As a result of this class, students will be better able to:
i. Apply their knowledge of the elements of negligence in order to predict
the outcome of various fact scenarios.
ii. Organize arguments and advocate for either the plaintiff or defendant in a
hypothetical negligence action.
c. Attitude Objectives – Students will be better able to feel:
i. Knowledgeable about their actions and the actions of others that may
result in civil liability.
III.
Classroom Methods (note: a lot of the information for the lecture/discussion portion
of the class is contained in the PowerPoint slides; instructors should use the slides in
conjunction with this lesson plan outline):
a. Introductory discussion
i. Civil actions.
1. Show PowerPoint (PP) slide #2.
a. Instructor should facilitate discussion and bring up highprofile examples (e.g. O.J. Simpson civil trial following his
acquittal).
b. Show definition of a civil action according to Black’s Law
Dictionary (note: unless identified separately, all
definitions in this lesson are from Black’s Law Dictionary).
c. Compare to the definition for a criminal action.
ii. Key differences between criminal actions and civil actions.
1. Ask students to list some key differences between criminal and
civil actions before showing the next slide.
2. Show PP slide #3 listing some key differences.
iii. Introduce today’s focus: negligence.
1. Show PP slide #4.
a. Explain that negligence is a type of tort.
b. Show definition of tort. Ask students what this definition
means in common terms.
2. Show PP slide #5.
a. Negligence defined.
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b. Explain to students that there are other types of torts, like
intentional torts and strict liability, but that we will not
discuss these today.
b. Elements of Negligence
i. For this portion of the class, have the students count off from 1 to 4 and
break up into their groups accordingly. Distribute handout with
definitions of elements and other key concepts.
ii. The elements of negligence.
1. Show PP slide #6.
iii. Duty.
1. Show PP slide #7.
a. Defined.
b. Ask students to explain what this means in common terms.
i. Instructor should facilitate discussion. Basically,
“duty” is the law telling citizens how they must act
in a certain circumstance.
c. Go over example on slide.
2. The duty of care. Show PP slide #8.
a. Tell students that generally speaking, a person owes a “duty
of care” to those around him or her.
b. Determined by an objective standard.
c. Explain the reasonable person test at bottom of slide.
3. Duty of care: Example. Show PP slide #9.
4. Who is the reasonable person? Show PP slide #10.
a. Instructor should walk through slide and explain the
“calculus” a reasonable person goes through (explained at
the bottom of the slide) by referring to the example of the
previous slide.
b. In our grocery bag example from the previous slide, it is
highly likely that someone will be seriously injured if a
person drives with a bag on their head. Furthermore, the
burden of not driving with the bag on your head is very
small. Therefore, the reasonable person would not engage
in this behavior.
5. Circumstances matter. Show PP slide #11.
a. List on slide of characteristics that are and are not take into
consideration:
i. Is the defendant physically disabled? If yes, then
the “reasonable person” has the same disability.
ii. Is the defendant a child? If yes, then the
“reasonable person” is of the same age and
experience, unless the child was doing an adult
activity (e.g. driving a car).
iii. Did the defendant act during an emergency? If yes,
then the defendant’s actions will be compared to
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how a “reasonable person” in the same emergency
would have acted.
b. Show PP slide #12.
i. But, the reasonable person does not have the same
mental characteristics as the defendant. Thus, if the
defendant is of below average intelligence, he can’t
defend his actions based on this.
ii. Also, being drunk is no defense. A defendant’s
actions will be compared to a reasonable sober
person.
iii. Tell students that this list is not comprehensive, but
it contains some of the more important
characteristics considered.
iv. Breach of duty. Show PP slide #13.
1. Show definition.
2. Ask for student input. Instructor should facilitate discussion, but
the answer is simply the failure to behave as the “reasonable
person” would have behaved under the same circumstances.
v. Problems testing duty and breach of duty concepts.
1. Show PP slide #14. Have a student read the scenario out loud.
Give the groups about a minute to discuss:
a. Ask for a representative of group 1 to stand up and report
the group’s answers to the following questions.
b. How would a “reasonable person” have acted under the
circumstances? Answer: A reasonable person would
likely behave the same way that Itchy did.
c. Did Itchy breach the duty of care? Answer: No. Itchy
behaved as a reasonable person of ordinary prudence would
in that same situation.
2. Show PP slide #15. Have a student read the scenario out loud.
Give the groups about a minute to discuss:
a. Ask for a representative of group 2 to stand up and report
the group’s answers to the following questions.
b. How would a “reasonable person” have acted under the
circumstances? Answer: A reasonable person would
likely have been wearing clothing that was more visible.
Furthermore, a reasonable person would not be wearing
headphones playing loud music. Finally, a reasonable
person would look both ways before crossing the street.
c. Did Scratchy breach the duty of care? Answer: Yes.
Scratchy has failed to meet the duty of care he owes others
as a pedestrian at night.
vi. Causation.
1. Show PP slide #16.
a. Two parts to causation.
b. Cause in fact defined.
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i. Ask students what they think this means. Ask for
examples.
ii. Instructor should facilitate discussion. Give
examples if students are struggling to grasp concept
(e.g. the driver was reading the billboard, so he
didn’t see the car’s brake lights and couldn’t stop in
time; the camper didn’t extinguish the campfire, so
a large forest fire resulted).
c. Proximate cause defined.
i. Ask students what they think this means. Ask for
examples.
ii. Instructor should facilitate discussion. Basically,
the main point to understand is that proximate cause
is just the limitation courts have placed upon a
defendant’s responsibility for the consequences of
his conduct. As the common law evolves, there is a
more refined sense of when a court will or will not
impose liability for a particular consequence of the
defendant’s conduct.
iii. Explain that without proximate cause, liability for a
defendant may well be infinite, as the consequences
of any act are infinite (i.e. the butterfly effect
concept).
1. Read this to students if confusion persists:
“As a practical matter, legal responsibility
must be limited to those causes which are so
closely connected with the result and of
such significance that the law is justified in
imposing liability. Some boundary must be
set to liability for the consequences of any
act, upon the basis of some social idea of
justice or policy.” W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts §
41, at 264 (5th ed. 1984).
2. Note to teacher: Don’t dwell on this
concept as the case study will highlight the
difficulty of setting the limits of liability.
2. Show PP slide #17.
a. Ask students how to determine what is a cause in fact.
b. Introduce the “but for” test.
i. Example: But for the defendant doing X, Y would
not have happened.
c. Walk students through picture example on slide. But for
Bart leaving his skateboard at the top of the stairs, Homer
would not have tripped and fell.
3. Show PP slide #18.
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a. Ask students how to determine what is a proximate cause.
b. Introduce concept of foreseeability.
i. Walk students through the following example.
1. It is a breach of the duty of care to hit golf
balls off of your deck at your house on
Queen Anne.
2. Why? Because this type of behavior could
lead to broken windows and injuries to
persons hit by golf balls.
3. But what if a golf ball you hit bounces off of
a car driving on Aurora, shoots into the air,
and hits a seaplane on its way to landing in
Lake Union, causing it to crash into the
marina?
4. It is possible that the defendant would not be
liable for the damages caused to the
seaplane and boats because this scenario is
not reasonably foreseeable when the
defendant hit the golf balls.
vii. Problems testing causation concept.
1. Show PP slide #19. Have a student read the scenario out loud.
Give the groups about a minute to discuss:
a. Ask for a representative of group 3 to stand up and report
the group’s answers to the following questions.
b. Was Mr. Burns’ decision to drive with a bag on his head
the cause in fact of Hans’ injuries? Answer: Yes.
c. Was Mr. Burns’ decision to drive with a bag on his head
the proximate cause of Hans’ injuries? Answer: Yes.
This is precisely the type of injury that makes driving with
a bag on your head negligent.
2. Show PP slide #20. Have a student read the scenario out loud.
Give the groups about a minute to discuss:
a. Ask for a representative of group 4 to stand up and report
the group’s answers to the following questions.
b. Was Capt. McAllister’s spilled oil a cause in fact of the
dock fire? Answer: Yes.
c. Was Capt. McAllister’s spilled oil the proximate cause of
the dock fire? Answer: No. Tell students that this
scenario is based on the famous Wagon Mound No. 1 case –
a major force behind the adoption of the foreseeability
approach to proximate cause.
i. The court there said that it wasn’t reasonably
foreseeable that the oil could be lit on fire on the
water, so the burning of the dock was also
unforeseeable and the defendant was not liable.
viii. Damages
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1. Show PP slide #21.
a. Two aspects of damages – proving the harm and translating
that harm into money.
b. Tell students that actual physical harm is necessary before
a plaintiff can collect damages.
c. Next, show definition of the “monetary” aspect of damages.
d. Ask students about their thoughts on the adequacy of
paying money for certain injuries.
2. Show PP slide #22.
a. Ask students what they think plaintiffs could collect for.
i. Brainstorm for a bit, then reveal major categories.
b. Show categories.
i. Tell students there are others, but that those listed
are the main ones. Possibly explain punitive
damages as an example, but stress that punitive
damages are not allowed in WA.
c. Defenses
i. Show PP slide #23.
1. Explain that it is rare that an accident will have been caused solely
by one person.
a. Example: Scratchy is crossing the street at night wearing
all black and listening to his headphones on full blast.
Itchy is racing down the street with a paper bag over his
head. Itchy hits Scratchy.
i. Who is at fault? It can be argued that both are at
fault.
2. Introduce concept of contributory negligence.
3. Introduce concept of comparative negligence.
ii. Show PP slide #24.
1. Walk through pure comparative fault example. Explain that even
if the jury found Scratchy 90% responsible for his injuries
(unlikely in this example) he could recover the other 10% in WA.
d. Summary
i. Show PP slide #25.
e. Case Study / Advocacy Exercise
i. Distribute case study facts and instructions to the students.
ii. If time allows, have students take turns reading sentences from the fact
pattern out loud. If time is short, the instructor should read the facts out
loud while students follow along.
iii. Instructor should briefly review the instructions and also have the students
read those portions that apply to their group.
iv. Allow the students between 5 and 10 minutes to formulate arguments
(instructor should move around the room to monitor discussions and
answer any questions the students may have).
v. After the discussion time has elapsed, invite the group representatives to
the front of the classroom to present their arguments.
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1. Instructor should record each group’s key arguments on the board.
vi. After all groups have presented, take a vote to see who would find the
railroad liable and who would find the railroad not liable (instructor
should tell students that their votes should not be dictated by the side
assigned to them during the case study).
1. Tally the results on the board.
vii. Instructor should reveal the outcome from the real Palsgraf case to the
class and, if time allows, read selected passages from both Cardozo’s
majority opinion and Andrews’ dissenting opinion. Case cite is 164 N.E.
564. It is a short opinion, so the instructor can read and choose which
passages are most interesting to present to the students.
1. In Palsgraf, the Court of Appeals of New York reversed the
judgment of both lower courts and determined that Ms. Palsgraf
could not recover for her injuries.
a. The conduct of the employees, even if wrong in relation to
the man with the package, was not wrong in relation to Ms.
Palsgraf (who was standing a good distance away). Thus,
relative to her, the actions were not negligence at all.
b. When plaintiffs sue, they sue in their own right for a wrong
personal to them, and “not as the vicarious beneficiary of a
breach of duty to another.”
c. Furthermore, the employees’ acts did not impose a
foreseeable risk to Ms. Palsgraf; therefore, her injuries were
not reasonably foreseeable.
viii. Solicit student feedback on the outcome of this case. Pros and cons of the
decision?
f. Homework
i. Find a news article where it can be argued that somebody was negligent.
Summarize the story and indicate the source. Applying the elements of
negligence that we learned today, discuss whether the potential plaintiff
would be able to satisfy the legal requirements for a successful negligence
lawsuit.
IV.
Evaluation:
a. Class participation.
i. Based on both class discussion and group exercises.
b. Application of principles to the short hypotheticals and case study.
V.
Assignment:
a. See homework assignment described above (III.f.i.).
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