Answer To MBE Question From December 5th

(C) is correct.


Issue: How will plaintiff’s own violation of a statute affect recovery?


Rule: Statutes can create a special duty of care in addition to or in place of the general duty of care under the “reasonable person standard”. A statute (criminal  or  civil) will give rise to a  special or specific duty of care and render a defendant liable to plaintiff  in negligence if the  statute itself is clear and unambiguous, it specifies exactly what conduct or duty is required, it identifies a class of persons who owe the duty, and it sets forth conduct that establishes fault. It also must appear that the legislature sought to prevent the type of injury actually suffered by the victim; that is the victim is a member of the class of persons intended by the statute to be protected. The following are excuses for  violating  a  statute: (i) The violation is reasonable due  to the defendant’s incapacity;  (ii) The defendant is confronted with an emergency not due to his own misconduct; (iii) Compliance with the statute would cause more danger than violation (e.g., the defendant drives onto wrong side of the road  to  avoid  hitting  children  who  dart  into  his  path); or (iv) Compliance would be beyond defendant’s control. This applies if a statute codifies a duty for the benefit of the defendant (e.g., a blind pedestrian crosses against the lights and is a defendant in the resulting action). Note that in a regular negligence action, whether or not the defendant (or plaintiff if the defendant raises plaintiff’s negligence as a defense) breached a duty is a question of fact for the jury to decide.


Analysis: Here, the bus driver may have acted negligently and the plaintiff also may have acted negligently by crossing on a “do not cross” signal. Plaintiff’s negligence qualifies as negligence per se, but plaintiff has an excuse– he could not see the sign. Whether or not plaintiff breached his duty (i.e., whether plaintiff’s excuse is a valid defense for negligence per se) and whether or not the bus driver breached a duty are issues of fact for the trier of fact to decide. Thus (C) is correct.


(C) is correct because the trier of fact will consider these facts in determining whether plaintiff and bus driver breached their duties of care.


(A) is incorrect because the pedestrian’s actions will not as a matter of law bar recovery; this is an additional fact that the trier of fact may consider.


(B) is incorrect. The pedestrian’s actions are relevant to determining whether he acted reasonably and whether the bus driver acted reasonably.


(D) is incorrect because it is an incorrect application of the last clear chance doctrine. Plaintiff’s action is not necessarily barred under these facts. The last clear chance doctrine is a rebuttal by plaintiff against a defense that plaintiff was contributorily negligent. Here, there is a question of fact whether plaintiff was negligent or whether plaintiff had an excuse; thus we do not know from  the  facts given that plaintiff’s action is barred and it is premature to state that plaintiff’s only chance at prevailing is through the last clear chance doctrine.