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I recently created a video about Negligence Per Se (which stems from the violation of a statute). The reason I made this video is because while most examinees will see that there is an issue of Negligence Per Se, but so many examinees will not know how to address Negligence Per Se issues and even more importantly, examinees often do not know where to put Negligence Per Sen in there answer. I would suggest watching the video on my Youtube channel, but . . . FIRST . . .
Let’s take a look at Negligence Per Se. Negligence Per Se shows up on essay exams in two ways. First, it will show up as a failure to adhere to a statute by the defendant – for example, the defendant may have run a red light. As you know it is illegal to drive through a red light. In this same fact pattern, the defendant runs her car into the plaintiff’s vehicle and the plaintiff suffers injury. The plaintiff failed to wear his seatbelt.
Both the defendant and the plaintiff have violated statutes – the defendant ran a red light and the plaintiff failed to wear a seatbelt.
Looking at what is required to prove Negligence Per Se, there are two simple requirements: that the person who was injured was within the class of persons that the statute was designed to protect and that the harm that occurred (injury) was the type of injury that the statute was designed to prevent.
That is all you need to focus on – class of persons and type of harm. Just be sure to use the full language above.
So in the hypo above, you would put your discussion of Negligence Per Se of the defendant f(ailing to stop at a red light) under the Breach portion of the plaintiffs prima facia case for Negligence. In other words, the defendant breathe her duty of care to act as a reasonably prudent driver because she violated the statute when she ran the red light. Furthermore, the plaintiff’ was within the class of persons the statute was designed to protect and the injuries the plaintiff incurred fall within the type of harm the statute was designed to prevent.
It really is that simple. And when the exam graders see that you have not only identified the correct issue but, also knew where to place your discussion – it is a home run.
But, WAIT, there is MORE!
What about the plaintiff’s violation of the statute that requires all people in a moving vehicle to wear a seat belt? Where doe that discussion go? It should appear under Contributory Negligence!
Here is what I recommend:
Assumption of the Risk – here the plaintiff assume the risk of injuries by failing to wear a seatbelt as required by law.
Negligence Per Se, discussed supra
As discussed above, the plaintiff failed to wear his seatbelt. As a result the defendant can argue that the plaintiff is Negligent Per Se because he violated a statute when he failed to wear a seatbelt. Plaintiff was within the class of persons the statute was designed to prevent (passengers in or drivers of a car) and the type of injury the plaintiff sustained is the type of harm the statute was designed to prevent.
Under the Common Law, a finding of contributory negligence would be a complete bar to the plaintiff’s recovery. However, Modernly, most jurisdictions have imposed some form of Comparative Fault.
Your discussion would likely go on to address both pure comparative fault and modified comparative fault. However, even just getting throught the above is much better than what most examinees are able to do on exam day.
I wanted to draw your attention to this in order to impress upon you how incredibly important it is to have essay approaches and approaches to the MBEs. It simply is not enough to know the law – you must know how to write what the examiners expect to see and to put it in the correct order. If you wait until exam day to try to figure this out, you are likely doomed.
Finally, the bar exam is NOT an IQ test! It is, simply a test. Yes, it is a challenging test. But, only because examinees are poorly prepared. It is not an examinee’s fault if this information was not provided to you. And, you can be sure that this is just one of the hundreds of areas that need to be written in a specific way in order to have a great chance of passing.
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All the best,
Lisa Duncanson Founder/Program Director Bar None Review Author, Bar Exam Guru Blog 213-529-0990 firstname.lastname@example.org