MEE QUESTION 1

A mother was shopping with her six-year-old son at Big Box store. The son was visually
impaired, so his mother, concerned about crowding and jostling by other patrons,
restrained him by placing her hand on his shoulder and instructed him to remain in her
grasp. Despite his mother’s efforts, the son broke free of her grasp and ran toward a
nearby candy display. Because he was running and visually impaired, the son did not
notice some cheesecake on the floor in the store’s self-serve dining area; the cheesecake
was flattened and dirty. The son slipped on the cheesecake and fell to the floor, suffering
physical injury. Another customer unsuccessfully attempted to help the son to stand,
worsening the son’s injury by negligently twisting his arm.

Big Box had in place a policy instructing employees to take steps to promptly clean
known hazards on the floor, but it did not assign an employee to monitor floor conditions.
Big Box employees do not know when any employee had most recently inspected the
floor or when the floor had last been cleaned. The self-serve dining area includes displays
that contain takeout food, including cheesecake. These displays had last been stocked
several days before the son slipped on the cheesecake. On the day the son slipped and
fell, a store employee had walked by the self-serve dining area before the son slipped but
had not noticed the cheesecake on the floor.

The mother has filed a negligence claim on her son’s behalf against Big Box and the
customer who attempted to help the son. Both Big Box and the customer claim that the
son was negligent.

1. Under the applicable standard of care, are the facts sufficient for a jury to find that
the son acted negligently? Explain.

2. Under the applicable standard of care, are the facts sufficient for a jury to find that
Big Box acted negligently? Explain.

3. Can the customer be held liable for enhancing the son’s injury? Explain.

4. Assuming that only Big Box and the customer were negligent and can be held
liable, can the son recover the full amount of damages from Big Box only?
Explain.

Do not address the effect of any “Good Samaritan” statute.

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National Conference of Bar Examiners
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 July 2021 NEW YORK STATE BAR EXAMINATION

SAMPLE ESSAY ANSWERS

The following are sample candidate answers that received scores superior to the average

scale score awarded for the relevant essay. They have been reprinted without change,

except for minor editing. These essays should not be viewed as "model" answers, and

they do not, in all respects, accurately reflect New York State law and/or its application

to the facts. These answers are intended to demonstrate the general length and quality of

responses that earned above average scores on the indicated administration of the bar

examination. These answers are not intended to be used as a means of learning the law

tested on the examination, and their use for such a purpose is strongly discouraged.
ANSWER TO MEE 1

1. Are the facts sufficient for a jury to find that the son acted negligently?

The facts are sufficient for a jury to find that the son acted negligently under the
applicable standard of care. The issue is whether the son breached the duty of care of a
child of similar age and intelligence.

The prima facie case for negligence is (1) a duty owed by the defendant to the plaintiff,
(2) a breach of that duty, (3) the breach is the factual and legal cause of the harm, and (4)
injury to the plaintiff’s property or person. In general, the duty of care owed to all
foreseeable plaintiffs is that of reasonable care. A child is held to the standard of care of
a child of similar age, intelligence, and experience. In addition, any physical attributes
that are relevant are considered in determining whether the duty of care was breached.

Here, the son is 6 years old and will be held to the standard of care of a child of similar
age and experience. In addition, he is visually impaired. This is a relevant trait in
determining whether the son breached the duty of care by running out of his mother's
grasp to the candy display. It likely was negligent for the son to run out of his mother's
grasp. His mother took care to restrain him by placing her hand on his shoulder and told
him clearly to remain in her grasp. Nonetheless, he broke free of her grasp. On the one
hand, it might be reasonable for a 6-year-old young child to run free of his mother's
grasp, especially in a large store when he sees candy. However, because he was visually
impaired, and knew that he was visually impaired, it was likely negligent for him to run
away. While the facts are likely sufficient to support a finding that the son acted
negligently, it will be a question of fact for the jury.

2. Are the facts sufficient for a jury to find that Big Box acted negligently?

The facts are sufficient for a jury to find that Big Box acted negligently. The issue is
whether Big Box breached its duty of care to the son.

The prima facie case for negligence is laid out in 1. above. As discussed above, the
general duty of care is that of a reasonably prudent person. This duty is owed to all
foreseeable plaintiffs. However, in the case of an invitee, someone who is on the
premises for business purposes of the landowner, the landowner owes a heightened duty
of care to inform about or make safe known, hidden dangerous conditions, and also to
conduct reasonable inspections. Here, the son is present at the store with his mother, who
is an invitee. Thus, the son is an invitee as well.

The issue is thus whether Big Box breached this duty of care. Big Box had a policy in
place to ensure that employees promptly clean known hazards on the floor. However, it
did not assign an employee to monitor floor conditions. In addition, employees never
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know when another employee had most recently inspected or cleaned the floor. This is
likely a breach of the duty of care because Big Box, as a landowner, owed a duty to its
shopper, invitees, to conduct reasonable inspections. The facts indicate that the dining
area is self-serve, where it would be foreseeable that people would spill in the area. In
addition, the area had been stocked several days before the incident. On the day of the
incident, a store employee walked by the area but did not notice the cheesecake on the
floor. Overall, Big Box likely breached its duty of care by not enforcing standards for
conducting reasonable inspections of the area.

The plaintiff will be able to prove causation and damages, as well. Causation requires
that the defendant's breach of the duty of care be both the actual cause and the proximate
cause of the plaintiff’s harm. An event will be the actual cause of a harm when but-for its
occurrence, the event would not have happened. Here, Big Box's breach is the actual
cause of the son's harm because but for Big Box not having reasonable inspection
procedures, the son would not have slipped on the cheesecake that was negligently left
there. Proximate cause, on the other hand, is a limitation on liability and holds the
defendant liable only for foreseeable harms flowing from his conduct. Here, the
defendant's conduct was also the proximate cause of the son's harm. It is foreseeable that
if inspections are not conducted in an area where people self-serve food, food will spill
and remain on the floor, where customers will slip on them and be injured. Thus, the
defendant's conduct is both the actual and proximate cause of the son's injuries.

Lastly, the son can show damages, as he fell on the floor, suffering physical injury, and
was also further damaged by the customer's assistance in the form of a twisted arm, as
discussed below. Thus, the facts show that a jury could find that Big Box acted
negligently under the applicable standard of care.

3. Can the customer be held liable for enhancing the son's injury?

The customer can be held liable for enhancing the son's injury. The issue is whether he
negligently rescued him.

While there is no general duty to assist others in peril, one who comes to the aid of
another must conduct that rescue with reasonable care. Where a rescuer negligently
rescues someone, making his condition worse, he will be held liable for the subsequent
injuries. Here, a customer tried to help the son to stand up, but in so doing negligently
twisted his arm. The customer did not have a duty to assist the son. However, by
attempted to come to his rescue, the customer assumed a duty that he would act
reasonably in so doing. Because the customer negligently twisted his arm, he breached
that duty. In addition, this breach of the duty was the actual cause of the son's subsequent
harm, because but for this negligent rescue, the son's arm would not have been twisted. It
is also a proximate cause of the harm, because it is foreseeable that if a rescue is

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undertaken negligently, further harm, such as a twisted arm, will occur. In addition,
damages in the form of a twisted arm can be shown here.

Thus, the facts are sufficient to show that the customer can be held liable for enhancing
the son's injury.

4. Assuming that only Big Box and the customer were negligent and can be held
liable. can the son recover the full amount of damages from Big Box only?

If only Big Box and the customer were negligent and are held liable, the son can recover
the full amount of damages from Big Box. The issue is whether the negligent parties will
be jointly and severally liable.

In general, a tortfeasor is liable for all foreseeable harm resulting from his conduct. This
includes intervening acts of rescue, because peril invites rescue. Thus, it is foreseeable
that someone would come to the aid of another in peril, and possibly make the harm
worse.

Here, Big Box will be found negligent, as discussed above in 2. In addition, even if the
customer was negligent himself in inflicting the additional harm, this additional harm is
within the scope of foreseeability flowing from Big Box's harm. Thus, Big Box will be
jointly and severally liable to the son for the full amount of damages for the son's
injuries.

Note, however, that while Big Box will be liable to the son for the full amount of injuries,
it may have a claim for contribution from the customer. Contribution allows one
tortfeasor to recover a portion of the damages from another tortfeasor where each was
found partially responsible for the harm. Nonetheless, this will not affect how much the
son can recover directly from Big Box.

Thus, the son will be able to recover the full amount of damages from Big Box if both
Big Box and the customer were negligent.

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ANSWER TO MEE 1

1. There are sufficient facts for a jury to find that the son acted negligently.

There are sufficient facts for a jury to find that the son acted negligently. Because the son
was only six and a minor, and was not engaged in adult activities, the standard for
negligence will be a reasonable six-year-old who was also visually impaired.

Here, the facts indicate that the son knew he was supposed to be by his mother's side--she
physically restrained him to the best of her abilities, and orally instructed him to remain
in her grasp. A reasonable person, even at six, should know that this means they are not
supposed to freely roam around, and should be by the mother's side. Moreover, the fact
that the son is visually impaired should be something that would deter a reasonable six-
year-old from running around without direction. The fact that the son in this case not
only left his mother's physical control is indicative that the son acted negligently. The
mother's control was not even lax, so there is showing that the son acted at least
negligently. He also ran towards the display, despite being visually impaired. A
reasonable and prudent six-year-old would exercise more caution when roaming around,
and would probably not be running around because of the impairment. Thus, there are
sufficient facts here for a jury to find that the son acted negligently.

2. There are sufficient facts for a jury to find that Big Box acted negligently.

There are sufficient facts to find that Big Box breached their duty and acted negligently
under a theory of premise liability. In a commercial place of business, the premises owner
has a duty to customers to maintain a safe environment. There is vicarious liability for
negligent employee actions.

Here, the son slipped and fell on a flattened piece of cheesecake. From the facts, it seems
like the cheesecake had been there awhile, and had been flattened and dirty because of
how much time had lapsed. Under a theory of premise liability, Big Box had a duty to
notify customers and to clean the cheesecake within a reasonable amount of time from
when it fell on the floor. Big Box acted negligently here, because they did not implement
or enforce ordinary standards of care. They cannot account for the last time that an
employee inspected the floor or when the floor had last been cleaned. The fact that area
where the cheesecake fell had not been stocked for several days, and that an employee
never noticed the cheesecake on the floor is no excuse from Big Box's duty. Ordinary
care would mean that Big Box has rules for employees to be careful and vigilant of
fallen foods, especially if they were going to be tripping hazards. The fact that there are
other food displays should mean that there should be a heightened awareness that
slippery food could potentially fall on the floor and injure customers. The cheesecake on
the floor actually and proximately caused the son's injuries--but for the cheesecake, the
son would not have fallen. And, as a result of falling on the cheesecake, the son suffered
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injuries. All the elements for negligence under a theory of premise liability have been
met, so there are sufficient facts to find that Big Box acted negligently.

3. The customer can be held liable for enhancing the son's injury.

The customer can be held liable for enhancing the son's injury, but only for the
enhancement. Generally, there is no duty to rescue. However, if a rescuer undertakes a
rescue, he has a duty to rescue in a non-negligent manner. If the rescuer acts negligently,
he can be held liable only for any further injuries caused by the negligent rescue.

After falling, the customer here had no duty to help the son. The customer chose to help,
creating a duty to the son to act non-negligently. However, the facts here indicate that the
customer did in fact act negligently and twisted the son's arm, further enhancing the son's
original injuries. There is actual and proximate cause here. But for the customer's
negligent action, the son's arm would not have been injured. There is also foreseeability--
it was foreseeable that if the customer stepped in to help but then acted negligently, the
son could have been hurt more. The son was within the zone of danger. Lastly, the
negligent rescue caused actual injury to the son, with the result of the twisted arm.
Because all the requirements have been met for negligence, the customer can be held
liable for enhancing the son's injury.

4. The son can recover the full amount of damages from Big Box only.

The son can recover the entire amount of damages from Big Box only because this is a
traditional comparative negligence jurisdiction. Comparative negligence apportions the
damages pro rata based on how much each defendant is deemed to be negligent.
Traditional comparative negligence jurisdictions also allow for joint and several liability
amongst the tortfeasors. Joint and several liability means that the plaintiff can recover his
damages in full against any tortfeasor, but the tortfeasor may then claim against any other
negligent parties. Rescuers are foreseeable in negligent acts.

Because we are assuming that Big Box is negligent, they are on the hook for any
damages resulting from their negligence. It does not matter that the customer later
enhanced the son's injury--Big Box can be liable for those damages as well, because they
were the result of Big Box's negligence. Because rescuers are foreseeable, any negligence
in their rescue can also be attributable to the original tortfeasor. Here, Big Box would be
liable for damages caused by the customer. Comparative negligence and joint and several
liability work to allow the son to recover in full against Big Box, even if most of the
damages arise from the customer. Big Box can claim for any prorated damages against
the customer, but the son's action against Big Box will be allowed in full.

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