More Practice with Negligence

Riss v. City of New York and De Long v. Erie County

This is an excellent exercise for teaching the importance of close side-by-side comparison and for applying criteria to a scenario. Students must read with precision and use newly acquired terms correctly. The assignment also offers the opportunity to use further research to support claims.

Staying Structured. Explain to students that the whole point of having a definition subdivided into elements is so that writers relying upon the definition have a format to follow. Some students fail to even notice that negligence has been divided into four elements and neither name them in their introduction nor structure their essay around them.

Following Instructions. One common problem is a tendency to ignore the instructions. Students may be tempted to resist the fact that Riss lost her case and argue that the decision was made wrongly. This is a good opportunity to reinforce the importance of cleaving to the terms of the assignment.

Comparing Closely. Another error, one common to all comparison essays, lies in simply recounting the facts of each case without effecting a close point-to-point comparison. Students may need to be reminded that the real work of the essay is not in the recitation of facts but in the analysis.

Using Terminology. When it comes to facility with the legal terminology, you will have to decide for yourself how much to require of the students given that this is not a law class. Students will have a tendency to use "duty" "breach" and "proximate cause" interchangeably. This ties in to the common problem of essays that pretend to subdivide a topic but in fact retread the same ground repeatedly. Even if students cannot master the subtleties of the terms, you can at least expect them to treat them as three separate concepts.

The Legalese

Duty of Care: This is a question of what exactly police are expected to do. Students are reluctant to enter into the complexity of this question and often write something along the lines of, "They have a duty to protect the public." We have here two separate petitions for help, but they are made in different manners and under different circumstances. Push students to formulate exactly what they think the police obligation was in each situation beyond "a duty to help."

Breach: This is a question of whether the police lived up to their duty. One could say the police had no duty to Riss as an individual, or one could say that they had a certain duty but showed no fault in their performance of it. All depends on how "duty" is defined to begin with. Students will, of course, have no trouble showing that the police breached any conceivable definition of duty in the DeLong case.

Proximate Cause: This asks whether, setting aside questions of obligation and duty, the police actions were truly the source of the harm. Students are quick to say that harm may have resulted no matter what the Riss police did, but that the DeLong police could have averted catastrophe. Can they support those claims?