When I work with students on essay writing, as part of that program I provide students with my own answers to any essays I assign. I'm going to provide those answers here on the blog as well. Note that the questions will need to be purchased directly from the NCBE @ https://store.ncbex.org/mee-bar-exam-value-pack/. Included here are answers I've written to those previously administered essays.
July 2015: Torts
An initial issue is whether the friend might be liable to the boy on a theory of negligence. Generally, when determining if a child has breached a duty of care for purposes of establishing negligence, the child’s conduct will be judged against the standard for a child of like age, experience, and intelligence. However, the standard changes when the child is engaged in an adult activity or a hazardous activity normally only engaged in by adults. In those circumstances, the child may be held to the standard of an adult. And that standard will dictate that if the child acts differently than a reasonable adult would have acted under similar circumstances, the child may breach a duty of care. In addition to a breach of duty of care, a finding of negligence requires both cause in fact, proximate cause, and damages. Cause in fact requires that but for the act, the injuries would not have occurred. Proximate cause requires that the acts presented a reasonable foreseeability of harm.
Here, the friend is 10 years old and if held to the standard of a child it is unlikely that the child’s acts would have skewed from the acts of a reasonable child to the extent required for a finding of negligence. The friend here was, however, driving a motorized vehicle (a snowmobile) which is an activity generally only engaged in by adults. The facts tell us that the snowmobile was used in a rocky, forested area. Further, we’re told that the friend turned off the trail into a trail not designated for snowmobiles. A reasonable person would have been likely to understand the dangers of doing such a thing especially since the facts make clear that such places often contain hazards that may not be readily visible. In addition, but for the friend deciding to turn off the trail, the injuries that occurred would not have occurred, and those injuries are the exact injuries that one might expect from this decision.
Thus, because the friend was engaged in an adult activity and because it’s likely that the friend’s acts skewed sufficiently from how a reasonable adult would have acted, it’s likely that the friend may have breached a duty of care to the boy. Both cause in fact and proximate cause appear to have been satisfied here, and so it is likely that there may be a finding of negligence against the friend if brought by the boy.
Next, it should be determined whether the landowner might be liable to the boy on a finding of negligence. A landowner owes a duty of care to those on the landowner’s property, but that duty is often dependent upon the how the person on the landowner’s property is classified. A trespasser is one who enters the property of another without a privilege to do so. If, however, a reasonable person in the position of the person who enters the land would believe that there has been consent to do so, then the person may be deemed a licensee rather than a trespasser. If a person is classified as a licensee, the landowner will generally owe that person a duty to reveal hidden dangers of which the licensee would reasonably be unaware, assuming that the landowner knows or should know of those dangers.
Here, the facts indicate that the boy and the friend had no privilege to enter the landowner’s property so they might be trespassers. The landowner, however, did not make it obvious that the land was not open to the public since the “no trespassing” sign was not visible. It should be further determined whether it should have been reasonably foreseeable to the landowner that others might mistake the land to be open to the public because if a reasonable person in the position of the landowner should have realized this and failed to do so, then it may have been reasonable for others to believe they had the right to enter which would make the others licensees rather than trespassers.
Thus, determining the duty owed by the landowner to the boy requires a determination as to whether the boy and the friend should be classified as trespassers or licensees. The facts leave open both of these possibilities. If a licensee, a duty of care is owed, but if trespassers, further analysis is required.
Next, assuming the boy and the friend are deemed to be trespassers, it should be determined whether the attractive nuisance doctrine might apply. Under this doctrine, a possessor of land is subject to liability for physical harm caused to a trespassing child when the harm is caused by artificial conditions on the land and the land is such that children often trespass so that the possessor of land knows or has reason to know of the probable trespass. In addition, the possessor must know or have reason to know that the condition on the land poses a risk of death or serious physical injury to the trespassing children. It also must be true that the children because of their age do not recognize the risk involved and that the utility of the condition as well as the burden of eliminating it is slight compared to the risk involved in keeping the condition on the property. Finally, it must be true that the possessor of the land does not exercise reasonable care in preventing harm to the trespassing children.
Here, the landowner was aware that the logging trail intersected the snowmobile trail, and that many children would utilize the snowmobile trail. Further, the landowner knew that any sign that might deter a child from deviating into the logging trail could easily become obscured by snow. The risk to anyone, especially a child, who deviated as such was significant and obvious. The boy and his friend did not recognize the danger of the hidden chain. The burden of eliminating the risk is small; all that would be required would be a sign warning of the danger that would not be obscured by the snow. And the risk of harm was significant. The landowner faced with these facts might argue that because the kids were engaged in an adult activity, the attractive nuisance doctrine should not apply.
Thus, if the boy and his friend are deemed to be trespassers, the attractive nuisance doctrine might still allow them to recover from the landowner. The landowner’s argument that the doctrine should not apply because the kids were engaged in an adult activity will be a valid argument, but ultimately may not avoid recovery for the children.
The next issue is to determine whether the woman had a duty to the boy for which the boy might recover. Generally, there is no duty to come to the aid of another. Someone who decides to help another may then have a duty of care to render assistance if the failure to continue exercising care increased the risk of harm beyond the risk that would have existed had care never been given and if the person receiving the care relies on the other exercising reasonable care.
Here, it’s important to determine whether the woman increased the risk of harm beyond that which would have existed had she not called for help. That does not appear to be true. Had the woman not called for help, not only would the harm not have been less, but it likely would have been worse. Had she not called for help, the same injuries that occurred likely would have occurred and it’s reasonable to assume that certain injuries were prevented that might have occurred as well.
As such, it is not likely that the woman will face any liability to the boy since it does not appear that she breached a duty of care owed to the boy.
Lastly, it should be determined the consequences of recovery for the boy if it’s determined that the boy was also negligent and thereby partially caused his own injuries. At common law, if a plaintiff was negligent and the negligence at least partially caused his own injuries, the plaintiff would be precluded from any recovery for those injuries. This is called contributory negligence. But many states now apply comparative negligence in which a negligent plaintiff is not entirely barred from recovery; rather fault is apportioned and damages are awarded accordingly.
Here, we are told that the boy was an experienced snowmobiler and so it’s entirely reasonable to assume that the boy would have been aware of the all the risks here in allowing his friend to drive the snowmobile. But the boy did not bear the entire risk—the risk and fault here would be apportioned among both the boy and the friend.
Thus, even if the boy is deemed partially at fault for his own injuries, that is not likely to prevent recovery entirely. More likely is that damages will be awarded with a consideration of the various degrees of fault for all who failed to exercise adequate care.
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