Standard of care: nail negligence issues on a torts exam

I have kids.  (Hold on– I’ll get to the standard of care and negligence and how to use them on a torts exam soon.)

My kids, like all kids, are sometimes clumsy and have accidents.

They trip and fall . . . over their own feet.  Or mine.  Or my wife’s.

I am a super cool dad, like Phil Dunphy from Modern Family!

Self-awareness is hard.  Really, I am not calm when they trip.  I find myself shouting useless things like “don’t fall!’ when they fall, or “don’t drop shit!” when they drop shit.

What students get wrong about the duty of care

What does my shitty parenting have to do with the standard of care (or the duty of care as it is also known)?

I’ve noticed in grading a practice law school exam that many students take the “don’t drop shit!” approach with negligence issues on a torts exam.

That is, the way you spot a negligence issue is noticing some kind of harm (someone falls or drops shit.)

So what students do is they march through the elements of negligence.

They formulate a standard of care (the basis of the duty of care that the defendant owes the plaintiff) by reverse-engineering the harm.

But most students do this in way that is too simple and too cookie-cutter.

They borrow from my Cool Dad Playbook and write “The standard of care is NOT doing [the injury from the fact pattern].”

For instance, here are the types of duty of care they identify:

  • Duty not to [accidentally crash into my car]!
  • Duty not to [drop shit on my head!]
  • Duty not to [leave toxic waste in my swimming pool for my guests to choke on]!

The right way to write the standard on a torts exam

There is a different, better way to articulate a good duty of care.

In short three tips will help you both find the standard of care and get it right on a law school exam.  In short:

  • Find harm: identify the specific action that caused the harm.
  • Get 1-2 levels more abstract:  Draft a standard of care by identifying what the defendant should have done in language that is 1 or 2 levels more general or abstract than the specific action that caused the harm.
  • Be affirmative: formulate a duty of care in the affirmative (i.e., say what the defendant should have done or how he should behave), not negative (i.e., “Don’t do what you just did!”)

Watch this video for a deeper dive on these three tips:

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