Module 5 Practice Essay Question Annotated Answer

Seventeen (17) year old David decided that it was time to introduce his eleven (11) year old brother
Paulto some of the more “mature” aspects of life. David had always been strong-willed and confident
(his mother says he was “just born that way”) and was worried that Paul, who by nature was quiet and
reserved, would struggle during his teenage years unless he became more “worldly.” David decided to
start slowly, so one Friday afternoon he drove to the local Zip Mart and bought a pack of cigarettes. The
Zip Mart cashier assumed David was at least eighteen (18) years old and of legal age to buy the
cigarettes and did not ask to see a driver’s license or any other form of age verification. With cigarettes
in hand, David drove home, went inside to get Paul and told Paul that he needed his help “running an
errand.”

Paul gets into the front passenger seat of the car and David drives them away from town. About fifteen
minutes into the trip David looks at Paul and says, “little bro, it’s time to grow up,” and with that David
offers Paul a cigarette. Paul initially refuses the cigarette but David insists telling Paul, “this will make
you tougher – and dude, you need to be tougher.” Paul gives in, takes the cigarette and haltingly raises
it to his lips. David pulls a lighter from his pocket, and as he continues to drive down the country road,
reaches over ready to light the cigarette for Paul. At that very moment, David’s GZZ VideoPhone rings
with a call from Violet, David’s girlfriend, who wants David to see her new dragon tattoo that she got
that very afternoon. David answers the phone and says, “I’m dying to see the new art work, but first, let
me light up my little brother.” David then reaches over and lights the cigarette for Paul. David then
immediately turns his attention to his phone to check out Violet’s new tattoo.

A bit unsure of what to do, Paul puts the cigarette to his lips and inhales deeply. Immediately Paul starts
to gag – he feels like he is dying – and the dual sensations of suffocation and choking cause Paul to
thrash about wildly. Paul involuntarily reaches over and grabs David’s right arm all the while trying to
ask for help but unable to do so through the coughing and spitting. When Paul grabs David’s right arm,
David no longer has a hand on the steering wheel because he was holding his prized GZZ VideoPhone in
his left hand. At that moment, David loses control of the car, runs off the road and rams into a tree.
Both David and Paul are injured.

Please assume that all of these events took place in Mecklenburg County, North Carolina and at the time
of the events the following was in effect:

Mecklenburg County Ordinance 10-333: Use of Mobile Telephones While Operating a Motor Vehicle

Except as otherwise provided in Subsection (A) of this Section, no person shall operate a motor
vehicle while using a mobile telephone.

A. The provisions of this Section shall not apply to:

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 1. Any person using a hands free device for voice communication, provided that such
person does not touch the mobile telephone connected to such hands free device while operating or
using the vehicle;

2. Any person using a mobile telephone to call 911 or other emergency telephone
numbers to contact public safety forces;

3. Any person using a mobile telephone while maintaining a motor vehicle in a

stationary and parked position.

QUESTION:

Does Paul have a negligence claim against David because David was driving while on his cell phone?

NOTE: You should analyze Paul’s negligence claim ONLY in context of the elements of DUTY and
BREACH. Further, the jurisdiction involved follows the minority view – the Rule of 7s – in assessing
the negligence of a minor.

ANSWER:

Issue: Does Paul have a negligence claim against David because David was driving while on his cell
phone?

Rule: Negligence is the breach of a duty to exercise reasonable care under the circumstances. The
elements of a negligence claim are duty, breach, causation and damages. Breach of a duty is
negligence, but all four elements must be satisfied in order to hold the defendant liable under a
negligence claim.

The first element – duty – is normally establish as a question of fact through an objective
consideration of the defendant’s conduct under the circumstances. When a statute, administrative
regulation or ordinance applies and the defendant has violated that law, then that violation may
serve to establish the defendant’s duty and breach if the plaintiff was in the class of persons to be
protected by the statute and the harm suffered by the plaintiff was the type harm the statute was
intended to prevent.

Analysis: Here the facts show that David was attempting to view a photo of his girlfriend on his cell
phone while he was driving. Mecklenburg County Ordinance 10-333 specifically prohibits use of a
mobile telephone while operating a motor vehicle. Per the Ordinance, David’s use of his cell phone
while driving does not fall into one of the three specific and limited exceptions to the ban. As such,
David’s conduct in answering the call from his girlfriend and attempting to view the photo she sent
him while operating his vehicle puts David in violation of this ordinance.

Once it has been determined that an ordinance has been violated, then the question becomes
whether violation of that ordinance will be used to establish the duty of the defendant in a civil

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action. To make that determination the law requires a two-part analysis: (1) is the injured person a
member of the class intended by the legislature to be protected, and (2) was the harm of the kind
which the statute was intended to prevent.

As to the first consideration, the ordinance seems designed to protect anyone who may be
placed in danger by another’s use of a cell phone while driving. That would seem to include drivers of
other vehicles, passengers riding with other drivers, pedestrians and passengers in the vehicle being
operated by the person using a cell phone. As a passenger with David, Paul is in the class of persons
the ordinance was intended to protect.

As to the second consideration, the ordinance is designed to prevent harm of any type or kind
that could be caused by operating a vehicle while using a cell phone – specifically including injuries
from auto collisions. Paul’s injuries in this collision included a large gash across his forehead, and that
is the type injury the ordinance was intended to prevent.

Once violation of the ordinance is established and it is determined that the violation may serve to
establish the defendant’s duty, then you must consider what effect the court will give to that
violation. Violation of statute/ordinance is treated in one of three ways:

1) negligence per se which means negligence as a matter of law. Duty and breach are
established and the plaintiff need prove only causation and damages;

2) prima facie negligence – there is a rebuttable presumption of negligence on the part

of the defendant but the defendant may offer evidence to the contrary;

3) some evidence of negligence which means that the violation is a relevant

circumstance for the jury to consider in assessing the defendant’s conduct.

This jurisdiction treats violation of an ordinance as negligence per se which means

that David’s negligence (breach of duty) is established as a matter of law and the only issues
remaining for the jury as to this claim are causation and damages.

Finally, while duty is normally determined by an objective consideration of the defendant’s

conduct and while violation of an ordinance is negligence per se, when a child (a person under the age
of 18) is involved, the law uses a subjective test to determine duty under the circumstances and in
context of violation of a statute or ordinance.

The facts state that David was 17 years old at the time of the collision and under N.C. law the Rule of
7’s would typically come into play. The Rule of 7’s is a minority view that considers duty in context of
the minor’s age. The R7 provides:

A minor under age 7 . . . cannot be negligent

A minor between the ages of 7-14 has a rebuttable presumption of no capacity to be

negligent (i.e., no capacity to act unreasonably)

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 A minor between the ages of 14-18 is considered to have the capacity to be negligent
and thus is considered in context of his age, intelligence and experience.

In this case, because he is 17, David would typically fall into the last category.
However, one exception to this subjective consideration of a minor’s duty comes when the minor is
engaged in a dangerous activity usually undertaken by adults. Driving a car and using firearms are
two common examples of this type activity. Because David was driving a car at the time Paul was
injured, the exception to the R7s applies and David‘s conduct would be assessed under an objective
adult standard which would include consideration of the violation of the ordinance in determining
duty and breach. As such David is negligent per se.

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