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PENNSYLVANIA PERFORMANCE TEST PROFESSOR JAN M. LEVINE

DUQUESNE UNIVERSITY SCHOOL OF LAW

CHAPTER 1: THE PERFORMANCE TEST: HISTORY, OVERVIEW, AND STRATEGIES

A. Introduction

1. What is the PA PT?

o The Performance Test is the newest component of the bar examination. o As of July 2019, all but eight jurisdictions use the National Conference of Bar Examiners’

(NCBE’s) Multistate Performance Test (MPT); PA is one of those eight. o The Performance Test examines ___________________________, not knowledge of the

________________________.

The Multistate Performance Test “is designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. The MPT is not a test of substantive knowledge. Rather, it is designed to evaluate certain fundamental skills lawyers are expected to demonstrate regardless of the area of law in which the skills are applied.”

Similarly, the Pennsylvania Board of Bar Examiners says that “The [Performance Test] is intended to test an applicant’s ability to use basic skills that a lawyer should possess to perform a task that a newly admitted attorney would be expected to perform.”

o Measures abilities not fully tested by the other components of the Bar Exam

2. The Pennsylvania PT on Exam Day

o Pennsylvania requires only one Performance Test question. o The Pennsylvania PT questions have shown greater variability in complexity than those

prepared for the MPT. o On the first day of the Pennsylvania Bar Exam, the Performance Test is made available to

applicants to complete in the morning, along with two essay questions.

_________________________ are allotted to the Performance Test. “Time-pressured” writing and analysis

3. PA PT’s Role in Passing the PA Bar Exam

o To pass the Pennsylvania Bar Examination an applicant:

“. . . must attain a scaled score of ____________ on the combined scores of the PT, essay examination and MBE. The six answers to the essay examination and the PT (valued at __________ times an essay question) will be graded, totaled and scaled to the MBE. The

2 | © 2019 Themis Bar Review, LLC | PA Performance Test

combined essay and PT scores will be weighted at 55%, and the MBE score will be weighted at 45% of the total scaled score. The scaled scores of the PT/essay examination and MBE will then be combined to determine whether a scaled score of 272 or higher has been attained.” (Emphasis added.)

o Grading and grading review procedure for the PT is as follows:

“There are three graders for the PT and each essay question, each of whom grades one-third of the answers for that specific question. . .All applicants receiving a combined scaled score of 263-271 will be included in a re-read process and have their PT and six essay answers re-read and re-graded by a different grader. The re-read graders are not aware of the scores originally given.”

o Doing well on the PT lets you build up a “cushion” of points to counterbalance a poor job on some essay question.

Conversely, doing poorly on the PT hurts more than doing poorly on any of the essay questions.

4. PA PT Strategy

o Suggestion: answer the two essay questions first and then do the Performance Test. o You must adhere to the suggested time allocation, which is _________________________

for each of the two essay questions and ___________________________ for the Performance Test.

In practice: follow the suggested order, and try it in the reverse order, and see if you are disciplined enough to stick to the time allocation for the two essays and the Performance Test.

You must determine if:

You tend to spend too much time on the essays despite your intentions (thereby hurting your ability to do well on the Performance Test);

Your energy level is too low by the time you do the more demanding Performance Test; and

Whether any possible anxiety over the Performance Test affects your ability to do well.

B. What the Examiners are Looking For

The _________________________ and the ______________________ are the two parts given to you that define the universe in which you are operating for the next 90 minutes.

The Bar Examiners’ website notes that

“ . . . applicants are expected to evaluate the information in the File and identify the relevant facts, recognize the legal issues raised in performing the assigned task, analyze the legal materials that are provided and identify the applicable principles of law, and apply the

PA Performance Test | © 2019 Themis Bar Review, LLC | 3

applicable legal principals to the relevant facts to support a well-reasoned response that is clearly communicated in the manner assigned.”

Note that Examiners are not interested in what you know about the ______________________________________________ issues addressed by the Performance Test beyond your general knowledge of the law.

o Only interested in what you can do with the information and principles supplied to you by the File and Library parts of the Test, using the general concepts you learned in law school.

o They note:

“Although an applicant’s general knowledge of the law may provide some background for analyzing a problem, the factual information contained in the File and the legal principles contained in the Library are the only materials that should be used in formulating an answer to the assigned task.”

o Ignore everything you know beyond ______________________________________ about the substantive area of law addressed by the Performance Test.

To do otherwise is to risk getting a poor score (first, for not following instructions, and second, for going beyond the materials supplied by the Library).

You will not get credit for anything that goes beyond the substance or doctrine provided by the Library’s authorities.

C. Components of the Performance Test

1. The File

The File contains the documents that provide instructions for the task and provide the facts.

a. Assigning Memorandum

Tells you what document to prepare These are the ______________________________________ to the applicant or an

associate, written by a supervising attorney outlining the specific task to be completed. Read these instructions carefully—they tell you all you need to know about the nature

of the document and the issues to be addressed (the “__________________________”).

Exam Tip 1: Understanding the Assigning Memorandum is the most critical part of doing well on the Performance Test.

b. Source documents

Transcripts of interviews, depositions, and hearings Legal documents, such as pleadings, correspondence, contracts, and a lawyer’s notes ________________________ documents, such as newspaper articles, medical records,

and police reports

c. Formatting Memorandum (or Formatting Document)


Serves as a model or contains _______________________________________________ for the document to be drafted by the applicant.

May have a slightly different title, such as “Format Document” or “Guidelines for Preparing Internal Legal Memoranda”

Exam Tip 2: Keep in mind that these documents are likely to contain some facts that are relevant, some that are irrelevant, and some that are ambiguous. The documents may be incomplete or inconsistent, and some facts may be missing. And keep in mind that the “call of the question” in the Assigning Memorandum may ask for you to identify additional facts that would make your position stronger or weaker. Read the directions carefully to see if you’re asked to do this in the document you prepare.

2. The Library

o The Library contains all of the ________________________________________ from which you will derive the rules needed for the task.

For the Multistate Performance Test, the Library consists of documents from the fictional state of “Franklin,” with the court structure explained in the exam packet.

The Pennsylvania Performance Test documents are from Pennsylvania.

Exam Tip 3: Make sure you’re aware of the structure of the Pennsylvania court system.

o The Library will contain cases, state statutes or local ordinances, administrative agency regulations, administrative agency policies and procedures, and court rules.

Possibly some real or fictional secondary authorities, such as a section of a _______________________________ or treatise

o Remember: the Library is believed by the drafter of the Performance Test to be completely sufficient for the applicant to complete the assigned task; you are not to “add” to the library anything that you know about the doctrinal or substantive issues involved.

o The Library may contain authorities that are not relevant, in whole or in part, to the task assigned.

o Authorities contained may appear similar to real cases or statutes you know, but do not assume they are real. They may be real, they may have been modified from real authorities, or they may be totally fictional and written solely for the Performance Test.

D. Documents to be Prepared for the Performance Test

There are two classes of documents: objective and persuasive

1. Objective or Predictive (such as a memo to partner, a client letter, a fact investigation plan, a planning memo, a contract, or a will; similar types on MPT)

o In Pennsylvania, since 2004, we have had the following objective documents assigned:


An office memorandum to a supervising attorney (this has been assigned _______________________ times);

An opinion letter to client (this has been assigned three times); and A bench memorandum to a judge (once).

2. Persuasive (such as a brief, a complaint, a closing argument, a memo in support or opposition to a motion, a motion in limine, a demand letter, or a settlement proposal; similar types on MPT)

o In Pennsylvania, since 2004, we have seen the following types of persuasive documents being assigned:

A brief in support of, or in opposition to, a motion (this has been assigned _______________ times);

A letter to opposing counsel (this has been assigned two times); A petition for post-conviction relief; A motion for post-trial relief in civil claim; A complaint; A brief to an arbitrator; and Preliminary objections and the argument section of a supporting brief.

Exam Tip 4: You are likely to be asked to draft a document you haven’t previously prepared in school or at work—so look at the File for the Format Document and see what they put in it and what part or parts they want you to draft (and which parts they do not want you to draft). Although we know what’s most likely to appear based on past history, no one can predict what type of document will be called for on the upcoming exam.

o You’ll likely get a template in your File. o If you prepared a similar document in the past for someone else, YOU SHOULD NOT follow

that teacher’s or lawyer’s rules for the document! Do exactly what is stated in the instructions in the Assigning Memorandum and follow the Formatting Memorandum’s (or Formatting Document’s) style and structure.

The skills needed are those you already have: following instructions, and deriving rules and applying them to facts.

3. Ethical issues

o There may be _______________________________ issues in the File, because the identification and resolution of such issues is one of the things the examiners are looking for.

o Ethical rules are not likely to be included in the Library, unless they are the primary focus of the Assigning Memorandum.

o If you are asked to address an ethical issue, identify it, suggest ways of resolving the problem, and select one of your options.


E. Tips for Taking the Performance Test

The examiners are looking for a well-written, well-organized answer, prepared within the time limit (90 minutes).

1. For the first 45 minutes:

o Make sure the basic instructions are the same as those you’ve seen before in your practice exams.

o Read the ___________________________________________________ for the File and Library.

a. Read the Assigning Memorandum from the File and read it very carefully.

Figure out whether the document to be prepared is predictive, ______________________________, or ____________________________________.

Read the assigning memo again to be sure you didn’t misunderstand or overlook something important.

Write down the issue stated on top of your ____________________________________, so you don’t forget your focus.

b. Review the Formatting Memorandum to ID the type of document you will be drafting.

c. Skip the rest of the File and go directly to the Library.

Start with the ______________________________________________, then the cases.

Exam Tip 5: By reading the Library first, you will better prepared to sift through the entire File and determine what is relevant and what is irrelevant, so you can be more efficient and focused. By reading the more focused statutes and regulations first, you will be better prepared to read any cases supplied in the Library.

As you read:

Note the __________________________________________ and dates of the cases. Look for embedded authorities cited in the supplied authorities. Include in your answer some “case summaries” or “mini-briefs” stating the holding

and facts relied upon for each of the cases in the Library (you never need long quotations).

Consider a chart showing the authorities from the Library and the key legal issues identified and addressed in each case.

Look carefully at any comments about __________________________________, or references to other authorities, located within the Library’s statutes or regulations.

Do not ignore ____________________________________ (they’re likely present intentionally, not merely as filler).


The cases or statute might set out quite clearly the rule and any component elements you will need to apply.

Read it very carefully, and write out, on your scratch paper, the elements or conditions under which the rule was to be applied.

When you read the File, you will be able to note the facts that fit (or don’t fit) with these elements.

You may find you need to distinguish __________________________________ authorities in the Library.

Then go back and re-read the “call of the question” of the assignment in the Assigning Memorandum.

d. Then read the complete File.

Remember, some of the facts and parties may be _______________________________. Identify all the parties; write out a chart on your scratch paper, showing each party’s

name and the legal relationships among them.

That will help you sort the relevant from the irrelevant.

If you were asked by the Assigning Memorandum to consider what facts are missing and need to be found, this is where you’ll start to make that list.

For each of the relevant facts, note the page of the PT packet for easy reference.

Exam Tip 6: Remember, they are not testing your ability to remember principles from your law school courses, or from the other parts of your bar exam review course, other than general knowledge you should have acquired from your law school years. The specific principles all come from the Library, so don’t write about something in the File that’s not addressed by the rules and principles from the Library.

Addressing issues (other than ethical concerns) which are not stated in the Assigning Memorandum won’t count in the scoring of your examination.

Exam Tip 7: Your job is to follow directions and apply legal principles from the Library to the facts you derived from the File.

e. Re-read the Formatting Memorandum to be sure you know what you need to draft.

Prepare a checklist or rough outline of the parts of the document called for by the Assigning Memo or the Formatting Memorandum.

Then prepare a _____________________________________________ of your answer, following the Formatting Memorandum’s style and structure, so you can be thorough and organized when drafting the document called for by the Assigning Memorandum.

The Examiners are looking for you to organize your ideas in a comprehensive and articulate manner.


The secondary audience (perhaps most important audience) for your document is the ___________________________________ who will be grading your Performance Test, so make that person’s job easy.

Exam Tip 8: Before you actually write your answer to the Performance Test, you should have in front of you, on scratch paper, two critical guides: first, an outline of the document you’re going to prepare, and second, an outline of the File and Library showing where everything is located.

2. For the second 45 minutes:

o Write out your answer in the style of the Formatting Memorandum. o ___________________ the facts, but do not ______________________________ the facts

independently of the application of the rules.

Don’t repeat sections of the File or Library in your answer; use the relevant content.

o Similarly, don’t recite or quote all the facts or entire holdings of the cases; show how the principles enunciated by the courts turned on specific facts.

o When citing cases and statutes from the Library, use abbreviations and omit page references.

Quote any truly critical phrases or language exactly as it is supplied. Be aware that you may be asked by the Assigning Memorandum to note citations to the

File (to documents such as a Record).

Exam Tip 9: Do not merely relate facts from the File. You must use those facts by applying the rules to the facts. The biggest problem in most poor Performance Test answers, other than not following instructions, is that the applicants failed to discuss how the rules related to the facts from the file (in other words, the application was inadequate). Don’t supply abstractions. Look for every element of the rules, or components of the rules, and apply them to the facts.

o Finally, remember that there is no hidden agenda in the Performance Test, and there are no hidden issues.

CHAPTER 2: DOCUMENT TYPES

A. Introduction

The _______________________ will supply you with the directions for writing the document you are drafting. Look it over carefully.

Follow the instructions; do not reflexively prepare a document that complies with any other similar document you’ve already written, in law school classes or at work.

o You can prepare to draft the document for the PT by knowing some of the _________________________________________________ components of the types of documents called for by the Bar Examiners.


o Some generic components may be subconsciously “assumed” to be in the applicants’ minds by the examiners:

Example 1: On one Pennsylvania Performance Test, the examiner appeared to assume the applicants would know what constituted a business letter and inadequate guidance was given to the applicants.

If the Formatting Memorandum (or Formatting Document) and Assigning Memorandum call for you to include a factual statement, then do so.

o Other than in an office memorandum, applicants are not usually asked to include a statement of facts in any document, but anything is possible.

o If you need to include a fact statement, focus on the legally significant facts.

B. Objective or Predictive Documents

These provide a _________________________________________________ of both sides of an issue or problem, although your client’s interests are, of course, the focus of the analysis.

1. Office Memorandum

o This is the most likely document you will be asked to prepare; the audience is a partner or a senior associate.

o “Cut to the chase,” focusing on the heart of the document: the discussion of __________________________________________.

o Skip the typical long roadmap or overview section of the Discussion, but do organize your memo carefully and clearly!

o Follow IRAC or Conclusion-Rule-Proof of Rule-Application-Conclusion formats to set out your conclusions on the issues, and detail how you arrived at those conclusions by deriving rules from the Library and by applying the rules to the facts from the File.

o Use ______________________________________—each paragraph should clearly address a point, and the thesis sentence for that paragraph should identify the point.

o Use signposting or enumerated lists to keep track of each element or piece of the analysis, which will also make it easier for your exam to be scored.

o Address and resolve _____________________________________________ of weak points or opposing arguments.

2. Memorandum to a Judge by a Clerk

o The judge wants help from a clerk in deciding the matter before him or her; very similar to an office memorandum.

o The writer’s job is to ____________________________________________________ submitted by the attorneys for both sides, and decide which side has the strongest support, addressing counter-arguments.

o The trial judge is very different from an appellate judge, focused on the matter before the court, and not on societal implications or on making precedent for future cases.


o The judge relies primarily on ____________________________________ arguments and on balancing the equities of the instant matter.

3. Correspondence—an Advice or Opinion Letter to a Client

o The format and components of all business letters are pretty much the same:

The date the letter was prepared; Mailing information about the sender and recipient; A subject-matter title; Opening paragraphs that explain the purpose of the letter and often include some

personal touches; A factual recitation; A statement of the issue; The lawyer’s analysis (the application of the law from the Library to the facts from the

File) leading to a conclusion, often offering advice or a suggestion for some action to be taken;

A closing paragraph; and A signature line.

o Include whatever parts the Assigning Memorandum says to include; the analysis is the piece likely to be assigned.

o Lawyers always put standard caveats about factual accuracy in letters to clients; it is a good idea to include this in a Performance Test letter that is framed as going to a client.

Always say your advice is contingent upon the accuracy of the facts as you understand them, and if the facts are inaccurate the client should do nothing the letter says to do, except to contact the writer.

o A letter to a client or non-lawyer usually has a section that puts the matter and the answer into ____________________________________ language, and then explains the matter in a more technical fashion.

4. Wills, Contracts, and Other Similar Documents

o Scariest documents to prepare! Intended to regulate the conduct of one or more persons. o For a contract or will, you will be given specific guidance on format via the File. o These documents begin with a title or caption. They identify the parties using actual names. o There is often a statement of purpose. o Terms and parties are ________________________________________ and

________________________________ (often with a short-form reference to be used later). o May be divided into sections, with _______________________________________. o Usually not asked to prepare boilerplate sections.


a. Contracts

Will contain some paragraph about mutual agreements to establish __________________________________________

Usually a recital that tells the story of the deal. (“Whereas…”) ____________________________________________ are often critical, and the need

for them is going to be brought to your attention by the File. Similarly, pay attention to choice of law, choice of forum for litigation, severability, etc.

b. Wills

A will has several audiences, including the testator (the person writing it), the other persons (such as the members of the testator’s family), the administrator/executor, and a probate judge.

The File and Assigning Memorandum will point out to you which of these audiences is the critical one for the document you are to draft.

Contains a _______________________________________, which identifies the testator and the document, revokes other prior wills and codicils, identifies the family, and defines important terms.

Then it disposes of property of the testator, by specific item and by class. May be sections that identify fiduciaries who are to administer the estate, how the

estate is to be administered, and ending sections for signatures and an affidavit by a witness

5. Legislation and Rules

o Your PT will provide you with a Formatting Memorandum (or Formatting Document) and an Assigning Memorandum to guide your draft.

o The boilerplate sections of title, enacting clause, and statement of purpose are not likely to be part of your document.

o The most likely focus will be on the definitions and substantive provisions, which set out the persons whose conduct is to be controlled and describe the conduct itself.

May also include provisions providing for penalties and for enforcement.

C. Persuasive Documents

The purpose of a persuasive document is to convince the reader that your client should _____________________________________. In order to do so, the client’s position must be presented in the best way possible.

1. Point headings

o May call for point headings which state the _______________________________________ you want the court to reach, and include the facts and rules that will lead it to do so

o Outline of your argument


o All are conclusory statements (they do not merely identify an issue). o Each heading is a single sentence.

2. Persuasive Correspondence

o The most common persuasive letters would be Demand Letters or Letters to Opposing Counsel.

o The format and components of all business letters are pretty much the same:

The date the letter was prepared; The mailing information about the sender and recipient; A subject-matter title; Opening and closing paragraphs that explain the purpose of the letter and often include

some personal touches; A factual recitation; A statement of the issue; The lawyer’s analysis leading to a conclusion (based on the application of the law from

the Library to the facts from the File); Advice or a suggestion for some action to be taken; and A signature line.

o In letters to non-clients, a lawyer must still strive for an honest and forthright application of law.

o Demand letters or letters to opposing counsel allude to the cost of litigation, suggest ways to avoid further disputes between parties, and offer a resolution.

o Avoid threats, insult, sarcasm, and the like. Use polite but forceful language.

3. Position Paper to an Agency or Legislator

A detailed letter to a government agency or legislator that suggests solutions to broad issues of ___________________________________________, not limited to the instant client’s situation

4. Pleadings and Motions

a. Complaints

Include several boilerplate provisions, such as the caption, an introductory sentence, and an ending signature

Likely to require a statement of the claim, setting forth in numbered paragraphs the facts supporting a cause of action, and including a request for damages or relief

b. Motions

Easily divided into ___________________, __________________, and post-trial motions


Common pre-trial motions would be motions in limine (seeking to exclude evidence), motions for summary judgment, or motions to dismiss for failure to state a claim upon which relief can be granted.

Trial motions may be about a directed verdict or requests for jury instructions. Common post-trial motions would be for judgment notwithstanding the verdict, a

petition for post-conviction relief, or a motion for post-trial relief in a civil claim, which are documents that contain many of the elements of a Motion and a Trial Memorandum.

All motions begin with a case ______________________________ identifying the court and parties, the docket number, a title identifying the motion itself, and a statement about the request being made.

The motion then sets out the moving party’s request, and the specific reasons for it to be granted, usually appearing in numbered paragraphs.

The end is a signature block. A motion includes a draft of an order granting the request. Motions are usually accompanied by a __________________________________ that

explains in detail the reasons for granting the request.

5. Trial Memorandum

o A trial memorandum or trial brief is a short version of the far longer _____________________________ brief you are familiar with from your legal writing course.

o The focus of a trial court is on deciding the instant matter, not on the broader implications for society or development of the law that are the focus of a brief to an appellate court.

o The trial judge is focused on the matter before the court, and not on societal implications or on making precedent for future cases.

o The judge relies primarily on fact-based arguments and on balancing the equities of the instant matter.

Example 2: Pennsylvania has assigned applicants to draft a petition for post-conviction relief and a motion for post-trial relief in civil claim, which are documents that contain many of the elements of a Motion and Trial Memorandum. The key here is to look carefully at the Assigning Memorandum and Formatting Memorandum (or Formatting Document) to determine exactly what your document is to address.

Exam Tip 10: Remember that the bias of a trial judge is to hear all evidence, permitting a later change of mind on an issue if it turns out to be incorrect (JNOV), and to not be reversed on appeal.

o Will usually include several sections which are unlikely to be written for a Performance Test question, such as a Statement of Facts, a Summary, and the Procedural History


o The focus will be on the ___________________________________, where point headings or section titles will identify the issues, the client’s position on those issues, and the reasons why the client should prevail.

6. Documents Related to Fact-Gathering: Interrogatories, Depositions, and Affidavits

o First, plan out what facts are needed to prove whatever it is that the Assigning Memorandum calls for you to prove, and then figure out where in the File, or elsewhere, such facts could be found.

o Organize the facts by _____________________________________________________. o Don’t worry about ____________________________________ issues unless you are

specifically asked to do so. o Interrogatories are simply written questions asked of a party to the litigation.

You may have to explain why you are asking each question, relating the question to proof of some element of the case.

o Depositions are questions asked of witnesses outside of court.

In a deposition, questions are asked of someone who is ________________________ and subject to cross-examination by the other attorneys in the matter.

o Other examples of similar documents would be Requests for Admission, Requests for Production of Documents, and Requests for Examinations of Witnesses.

o Affidavits are sworn statements by a witness, prepared with numbered paragraphs which each address one statement.

Affidavits begin with identification of the declarant and how the declarant personally knows the things related in the document, and then the document goes into the things known by the declarant.

7. Other Trial Documents

a. Case Planning Documents

Set forth strategy for producing evidence to support success at trial.

b. Opening Statements

_____________________________________ presented at the start of trial, which say what that side intends to show, and how it will be shown. Contains emotional content and puts forth your version of the tale in an interesting and intriguing way.

c. Closing Arguments

Statements presented at the end of trial, usually to a jury ____________________________________, and sum up the side’s case Usually organized element-by-element


d. Jury Instructions

Presented by counsel to the judge, who decides whether to use them to charge the jury They must be clear to _________________________ persons, and must tell them

exactly what is needed to prove each element of a case. ___________________________________________ are important, and they have to

address the specific facts of the case, not be written in generalities.

e. Cross-Examination Plans

Address questions going to the credibility of a witness, based on materials related in the File.

8. The Appellate Brief

o As compared to a trial memorandum or brief, an appellate brief focuses on broader issues about the future development of the law, with implications for society, beyond the situation posed by the litigation.

o Likely the focus will be on an Argument with __________________________________ point headings

o Provide a well-organized document, taking the rules derived from the Library and applied them to the facts from the File.

9. Judicial Opinions

o An opinion shows the reasoning behind the result, step-by-step, issue-by-issue. o The focus is likely to be on deriving rules from the Library and

_________________________________________ them to the facts from the File. o Likely need to navigate between prior decisions, distinguishing precedent where

appropriate, and explaining the broad implications of the decision for the future, on jurisprudence, and on social and legal policy


CHAPTER 3: SAMPLE PENNSYLVANIA PT – FEBRUARY 2017

Before listening to the following chapter, complete Pennsylvania Performance Test February 2017. Give yourself 90 minutes for the exercise. Highlight the relevant content of the File and Library, take notes on scratch paper, prepare an outline, and then draft the document the sample calls for.

The Handout contains annotated pages from that Performance Test, and examples prepared to demonstrate all of the work product that an applicant should have prepared to answer the test question. Compare what you did with what is provided, and then listen to the Chapter 3 of the Lecture with those materials in front of you.

Editorial Note 1: Please refer to the annotated question, handwritten notes, and annotated sample answer that follow this page. Download an electronic version of this handout to see the different colored highlights referred to by Professor Levine. Space has been left here for your own notes. Professor Levine’s final tips are at the conclusion of this handout.

Notes on annotated question_____________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Notes on handwritten outline_____________________________________________________________

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Notes on sample answer_________________________________________________________________

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

PT

Supreme Court of Pennsylvania Pennsylvania Board of Law Examiners

Pennsylvania Bar Examination

February 24 and 25, 2015

PERFORMANCE TESTFebruary 24, 2015

Use GRAY covered book for your answer to the Performance Test.

© 2015 Pennsylvania Board of Law Examiners

PLACE BAR CODED APPLICANT LABEL HERE

Question Number 3on SofTest

53

February 21 and 22, 2017

February 21, 2017

2017 Pa Board of Law Examiners

Table of Contents

FILE

1. Assignment Memorandum .............................................................................................1

2. Formatting Memorandum ..............................................................................................2

3. Town Police Department Incident Report .....................................................................3

LIBRARY

1. 75 Pa.C.S. § 3316 – Prohibiting text-based communications ........................................5

2. 75 Pa.C.S. §102 – Definitions ........................................................................................5

3. Rockwell v. Knott & New Prime, 32 Pa. D. & C 5th 157 (Pa. Com. Pl. 2013) ..............6

4. Schemberg v. Smicherko, 85 A.3d 1071 (Pa. Super. 2014) .........................................12

54

FILE

55

Memorandum

TO: Applicant FROM: Ethan Anderson DATE: February 21, 2017 CLIENT: Patty Pasternak, client # 05152008 SUBJECT: Assignment to Draft Memorandum

We represent Patty Pasternak with regard to the serious injuries she suffered as a result of a motor vehicle accident in which her vehicle was struck on the driver side by a motorcycle being operated by Daniel Dench. We will bring an action against Mr. Dench alleging, among other claims, negligence per se for violating the Pennsylvania statute prohibiting text-based communications. We will also request punitive damages for Mr. Dench’s outrageous conduct, as detailed in the police report.

After speaking to Mr. Dench’s counsel, I anticipate that he will raise three legal issues with respect to our anticipated complaint:

1. He will object to our inclusion of punitive damages; 2. He will claim that Dench’s playing a video game while driving does not violate 75 Pa.C.S. §

3316; and 3. He will claim that, even if Dench’s conduct is found to be a violation of 75 Pa.C.S. § 3316, it

cannot be a basis for a negligence per se claim.

While I believe we do, I want to be certain that we have a proper basis for our claim of negligence per sebased on a violation of 75 Pa.C.S. § 3316, as well as for our claim for punitive damages, before we draft and file the complaint. Your assignment is to draft a legal memorandum to me setting forth the law concerning each of the three issues listed above, along with an argument in support of our position on each issue. Please set forth in the memorandum the factual and legal basis for your arguments.

Attached is a memorandum setting forth the guidelines and formatting to use when drafting your memorandum and a copy of the incident report from the Town Police Department for your review. Ihave also included for your use a Library that contains relevant legal authority. Please limit your argument to the facts contained in the File, and the law contained in the Library. Do not base your arguments on law or facts that are not included in the File or Library. Do not include your name on the memorandum; instead, simply put “Applicant” in the “From” field. Although Bluebook citations are not necessary, please cite to each case, statute, or document such that I will know to what document you are referring.

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three legal issues

punitive damagesplaying a video game while driving does not violate 75 Pa.C.S. §

3316; 75 Pa.C.S. § 3316, it

cannot be a basis for a negligence per se claim.

Do not include your name on the memorandum; instead, simply put “Applicant” in the “From” field.

please cite to each case, statute, or document such that I will know to what document you arereferring.

THREE ISSUESTO BE ADDRESSED

INSTRUCTIONS FOR THE ANSWER

Law Offices of Ethan Anderson & Associates Attorneys at Law

DATE: January 2, 2017 TO: All Attorneys and Law Clerks FROM: Ethan Anderson RE: Guidelines and Format for Preparation of Internal Legal Memoranda

Use the following guidelines and format in the order listed for preparing all internal legal memoranda:

1. The document should be entitled “Memorandum of Law.”

2. The upper left corner of the memorandum should include a heading similar to the heading above (e.g. – Date, To, From, and Re).

3. Include a brief introductory paragraph laying out the purpose of the memorandum.

4. The memorandum should be divided into sections, one for each issue discussed. Each issue should begin with a short heading that reflects the issue being addressed.

5. Each section should include a statement setting forth the issue being addressed and a reasoned analysis supporting your conclusion. Identify the relevant and controlling legal principles and apply these legal principles to the facts to demonstrate the reasoning that supports your conclusion on the issue presented. If there are facts and legal principles relevant to any point or element in your analysis that could be argued to support a different conclusion, identify and discuss those principles or facts.

6. Include all relevant facts needed to resolve the issues presented as well as any background facts helpful to understanding the issues.

7. State your conclusion(s) as a positive statement that responds to the question(s) raised by the issue presented.

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entitled “Memorandum of Law.”

The upper left corner of the memorandum should include a heading similar to the heading above (e.g. – Date, To, From, and Re). –

brief introductory paragraph laying out the purpose of the memorandum.

divided into sections, one for each issue discussed. Each issueshould begin with a short heading that reflects the issue being addressed.

Each section should include a statement setting forth the issue being addressed and a reasonedanalysis supporting your conclusion

Include all relevant facts

State your conclusion(s) as a positive statement

FORMATTING MEMORANDUM GUIDELINES TO BE PUT INTO ROUGH OUTLINE AND FINAL ANSWER

TOWN POLICE DEPARTMENT INCIDENT REPORT

1. TYPE a. ORIGINAL b. CONTINUATION c. SUPPLEMENT

2. TYPE OF OFFENSE OR INCIDENT: Motor Vehicle Accident

3. ADDRESS OF OFFENSE OR INCIDENT: Intersection of First and Main Streets, Town, PA

4. NAME OF AGENCY: Town P.D.

5. DATE AND TIME OF OFFENSE/INCIDENT: 08/18/2016 at 1:00 P.M.

6. PERSONS INVOLVED:

7. VEHICLES INVOLVED:

8. WEATHER CONDITIONS: It was a dry, summer day with no adverse weather conditions.

9. NARRATIVE (If additional space is needed, use blank sheet and attach.)

Driver 1, Patty Pasternak, stated that she was driving north on First Street approaching the intersection with Main Street when she lawfully stopped for a red light. Driver 1 saw Driver 2, Daniel Dench, driving erratically down Main Street on his motorcycle and traveling at a high rate of speed. As Driver 2 approached the intersection where Driver 1 was stopped, Driver 1 could see that Driver 2 was looking down at his leg, and Driver 2 never looked up from his leg. Driver 2 suddenly reached down to his leg and picked up his telephone with his right hand and, while tapping the screen with his left hand, he immediately veered to the right, hitting the curb and becoming airborne. Driver 2’s motorcycle then collided with the driver’s side of Driver 1’s vehicle. Driver 1 was transported to Town Hospital via ambulance. Driver 1 sustained a concussion, back and neck injuries, and her vehicle was totaled.

NAME AND ADDRESS AGE SEX INJURED TELEPHONE #Driver

1Patty Pasternak1 Prickle PlaceTown, PA 99999

45 F Yes 555-555-5555

Driver2

Daniel Dench2 Dunbar DriveTown, PA 99999

16 M Yes 444-444-4444

MAKE AND MODEL

YEAR COLOR CHARACTERISTICS VIN # Tag No.

Vehicle1

Chevrolet Traverse

2016 Black 4 door, SUV 06241995PA11052010 Pable 1

Vehicle2

Harley Davidson Fat Boy

2015 Red Two wheel; street motorcycle

08191968FL10171962 GPB 001

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Pasternak

Dench

Two wheel; street motorcycle

Driver 1 saw Driver 2, Daniel Dench, drivingerratically down Main Street on his motorcycle and traveling at a high rate of speed.

Driver 2 was looking down at his leg, and Driver 2 never looked up from his leg. reached down to his leg and picked up his telephone with his right hand and, while tapping the screen with his left hand, he immediately veered to the right, hitting the curb and becoming airborne motorcycle then collided with the driver’s side of Driver 1’s vehicle.

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FACTS FROM FILE NEEDED FOR OUTLINE AND ANSWER

PARTIES (NOTE NAMES’ INITIALS CORRESPOND TO PLAINTIFF AND DEFENDANT

VEHICLE DRIVEN BY DEFENDANT - NEEDED FOR STATUTORY COVERAGE

POLICE OFFICER’S REPORT ABOUT PLAINTIFF’S STATEMENT (CLIENT)

Intersection of First and Main Streets, Town, PA

LOCATION OF ACCIDENT ONPUBLIC HIGHWAY

(Narrative continued) (Page 2 of 2)

Driver 2, Daniel Dench, stated that, while driving east on Main Street approaching the intersection with First Street, he was playing a video game on his smart phone in which players compete to collect the highest number of virtual gold coins in the shortest amount of time. Players normally walk around town, periodically looking at their mobile device/PDA which shows them where coins are, and when players get close enough on a map, the virtual coins appear on the screen of the player’s mobile device. Upon seeing the virtual gold coins on their mobile device, a player must tap the screen of their mobile device tocollect the virtual coins; at the same time, the player receives a text message stating, “Congratulations, you got the coin!” The player then taps the screen again, which automatically sends to other players atext message saying, “I got it!” Driver 2 stated he thought he could collect coins faster by driving his motorcycle instead of walking. Driver 2 admitted to: traveling in excess of the speed limit; driving very close to the curb to gather the virtual coins; taking his eyes off the road for at least five seconds to look for the next virtual gold coin on his mobile device that was sitting on his leg; and then, immediately before hitting the curb, picking up the mobile device and tapping the screen when he found the coin, reading the resulting text message saying he got the coin, and tapping his mobile device screen again tosend a message to other players that he got the coin. He also stated “I knew it was risky to speed and drive so close to the curb while playing, but it was definitely worth it so I could win the game and maintain the title of top coin collector.” Driver 2 was transported to Town Hospital via ambulance. Despite suffering a fractured skull and two broken legs, he said he will return to playing the game to retain his title.

Driver 2 was cited for speeding, operating a motor vehicle in an unsafe manner, failing to abide by traffic signal devices, and texting while driving (75 Pa. C.S. §3316).

End of Report.

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Daniel Dench, stated that, while driving east on Main Street approaching the intersection with First Street, he was playing a video game on his smart phone

Driver 2 admitted to: traveling in excess of the speed limit; driving very close to the curb to gather the virtual coins; taking his eyes off the road for at least five seconds to lookfor the next virtual gold coin on his mobile device that was sitting on his leg; and then, immediately before hitting the curb, picking up the mobile device and tapping the screen when he found the coin,reading the resulting text message saying he got the coin, and tapping his mobile device screen again tosend a message to other players that he got the coin. He also stated “I knew it was risky to speed anddrive so close to the curb while playing, but it was definitely worth it so I could win the game and maintain the title of top coin collector.”

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POLICE OFFICER’S REPORT ABOUT DEFENDANT’S STATEMENT - ADMISSIONS ARE CRITICAL FOR THE ANSWER

Driver 2 was cited for speeding, operating a motor vehicle in an unsafe manner, failing to abide by traffic signal devices, and texting while driving

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LIBRARY

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75 Pa. C.S. § 3316 Prohibiting text-based communications

(a) Prohibition. -- No driver shall operate a motor vehicle on a highway . . . in this Commonwealth while using an interactive wireless communications device to send, read or write a text-based communication while the vehicle is in motion. A person does not send, read or write a text-based communication when the person reads, selects or enters a telephone number or name in an interactive wireless communications device for the purpose of activating or deactivating a voice communication or a telephone call.

* * *

(d) Penalty. -- A person who violates subsection (a) commits a summary offense and shall, upon conviction, be sentenced to pay a fine of $50.

(f) Definition. -- As used in this section, the term "text-based communication" means a text message, instant message, electronic mail or other written communication composed or received on an interactive wireless communications device.

75 Pa. C.S. § 102 – Definitions

“Interactive wireless communications device.” A wireless telephone, personal digital assistant, smart phone, portable or mobile computer or similar device which can be used for voice communication, texting, e-mailing, browsing the Internet or instant messaging.

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“Highway.” The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.

* * *

“Motor vehicle.” A vehicle which is self-propelled[, which includes a motorcycle,] except an electric personal assistive mobility device or a vehicle which is propelled solely by human power.

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§ 3316

No driver shall operate a motor vehicle on a highway while using an interactive wireless communications device to send, read or write a text-basedcommunication while the vehicle is in motion.

(a)

(f) the term "text-based communication" means a text message,instant message, electronic mail or other written communication composed or received on an interactive wireless communications device.

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“Interactive wireless communications device.” A wireless telephone, personal digital assistant, smartphone, portable or mobile computer or similar device which can be used for voice communication, texting, e-mailing, browsing the Internet or instant messaging.

“Highway.” The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.

“Motor vehicle.” A vehicle which is self-propelled[, which includes a motorcycle,]

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STATUTORY DEFINITIONS NEEDED FOR THE ANALYSIS OF THE ANSWER

32 Pa. D. & C.5th 157 (Pa.Com.pl. 2013)

STEVEN ROCKWELL, Plaintiff

v.

GLENN KNOTT and NEW PRIME, INC., Defendants

Common Pleas Court of Lackawanna County, Pennsylvania

* * *

Defendants' motion for partial summary judgment in this motor vehicle litigation raises a novel issue of apparent first impression in this Commonwealth: whether a motorist, who is involved in an accident while looking downward at the display screen of a global positioning system (“GPS”) application [footnote omitted] on a cell phone, rather than at the roadway, may be liable for punitive damages? A motorist arguably may engage in recklessly indifferent conduct, and thereby be potentially liable for punitive damages, if [s]he completely diverts his or her attention from the roadway to observe a low positioned GPS device and nevertheless continues to travel on the roadway until [s]he collides with another vehicle.

I. FACTUAL BACKGROUND

This personal injury suit arises out of an automobile accident which occurred on August 24, 2011, at the intersection of East Union Street and North Washington Street in Wilkes-Barre, Luzerne County. At that time, Plaintiff, Steven Rockwell (“Rockwell”), was travelling eastbound on East Union Street, while Defendant, Glenn Knott (“Knott”), was proceeding in a westerly direction on East Union Street. (citation omitted). Knott was operating a Ford Van that was owned by his employer, Defendant, New Prime, Inc. ("New Prime"), and was acting within the course and scope of his employment with New Prime at that time. (citation omitted).

Knott brought his vehicle to a stop in the westbound, left-hand travelling lane of East Union Street, “intending to turn left onto the southbound lane of North Washington Street.” (citation omitted). Rockwell has alleged in his amended complaint that as a [sic] Knott was stopped at the intersection, he “began fidgeting with his GPS unit, taking his eyes off of the road,” and diverted his attention “from oncoming traffic for a substantial and significant amount of time.” (citation omitted). Knott and New Prime have specifically denied those allegations in their responsive pleading. (citation omitted). Rockwell further avers that “[a]s [he] attempted to drive through the foregoing intersection in the eastbound lane of East Union Street, Mr. Knott abruptly turned left into Mr. Rockwell's lane.” (citation omitted). Knott and New Prime have also denied that assertion, and contend to the contrary that “Rockwell's motorcycle struck Glenn Knott's vehicle.” (citation omitted).

Rockwell commenced this action on February 17, 2012, and asserted a negligence claim against Knott, a vicarious liability claim against New Prime, and a direct claim against New Prime for negligent hiring and training of Knott. (citation omitted). In Count IV of the amended complaint, Rockwell seeks to recover punitive damages from Knott and New Prime. Rockwell alleges that “Knott knew that it was dangerous to operate his GPS at the same time that he was operating a vehicle,” and “knowingly and intentionally

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ROCKWELL

Common Pleas Court of Lackawanna County, Pennsylvania

NOTE: SHORT FORM OF CASE NAME IS ALL THAT’S NEEDED FOR THE ANSWER. INCLUDE THAT THIS IS A TRIAL COURT

chose to be distracted by his GPS system while he was operating a motor vehicle.” (citation omitted). Rockwell further maintains that “New Prime knowingly and intentionally failed to train, inform, educate, and prohibit its employees from acting as distracted drivers and from operating a GPS system while driving.” (citation omitted). As a result of that alleged “willful, wanton or reckless behavior” by Knott and New Prime, Rockwell advances a claim for punitive damages. (citation omitted).

During Knott's discovery deposition, he testified that on August 24, 2011, New Prime instructed him to drive a fellow employee from its Pittston business to a bus station in Wilkes-Barre. . . . Knott . . . obtained the . . . address for the bus station, and programmed that . . . address into the GPS application on his wireless communications cell phone. (citation omitted). Knott then placed his cell phone in the lower center console and angled its screen towards him so that he “could see it” as he drove to the bus station. (citation omitted).

According to Knott, once he arrived at the intersection of East Union Street and North Washington Street, he “stopped” the van, “took a glance down at [his] GPS . . . just to make sure [he] was on the right street,”and then “glanced back up” at “the Washington Street sign” before taking his foot off the brake. (citation omitted). When questioned further regarding the use of his GPS and the circumstances surrounding the accident, Knott testified:

Q. Now, let me make sure your testimony is accurate. When that last vehicle goes through the intersection, the last car you see, you look down at your GPS?

A. Yes, as it was coming through the intersection, I took a glance down to the GPS to make sure it was Washington, like the road I was going on was the correct road, yes.

* * *

Q. And when you looked down at the GPS, the car coming in the opposite direction was already in the intersection, the last car.

A. Yes.

Q. Then what did you do then?

A. I looked forward to see my lane was clear and I – that's why I perceived the lane was clear. I didn't see anyone in the straight lane.

* * *

Q. And then you started to move, turn, make your left-turn?

A. I took my foot off the brake and it moved forward.

Q. Help me understand that just so we're clear. I don't want to misunderstand what you're saying. So you looked up at the street sign. You see it says Washington Street, and then you take your foot off the brake.

A. Yes.

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Q. And at the time you take your foot off the brake, where are you looking?

A. Well, I was moving my eyes down towards the street in front of me.

Q. So when you took your foot off the brake, you were moving your eyes from the Washington Street sign down to the –

A. To the street in front of me, yes.

Q. And when you took your foot off the brake, the vehicle started to move forward?

A. Yes.

Q. And did you have the wheel turned one way?

A. Yes.

Q. What way did you have it turned?

A. Turn left to make the turn.

Q. Did you put your foot on the gas at all?

A. No.

* * *

Q. And your vehicle was already moving at the first – when you first saw the motorcycle?

A. This, when I first saw it, yes, and then I hit the brake.

Q. And then you hit the brake. When you hit the brake, did your vehicle stop immediately?

A. I believe it stopped like right prior to impact, yes.

(citation omitted).

After the close of discovery and following the filing of a Certificate of Readiness for trial, Knott and New Prime filed a motion for partial summary judgment with respect to Rockwell's punitive damages claim. Knott submits that there is no evidence in the record to support the allegations in Rockwell's pleading that Knott “was looking at his GPS when he began to make the left hand turn, i.e., that he violated a traffic law and was distracted.” (citation omitted). In the alternative, Knott posits that even “assuming arguendo that Mr. Knott was looking at his GPS when he began to turn left, such an act does not constitute evidence to satisfy the heightened legal standard necessary to prove a claim for punitive damages.” (citation omitted).. . .

In opposition to defendants’ motion for partial summary judgment, Rockwell cites the deposition testimony of Knott's supervisor, Richard Yarborough, who stated that all New Prime drivers are advised “not [to] use GPS” because [t]hey're dangerous” and “take your attention from the road.” (citation omitted). Rockwell asserts that Knott “ignored this directive” and “proceeded to drive ‘blindfolded’

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despite being specifically instructed not to do so by Mr. Yarborough.” (citation omitted). Rockwell further argues that Knott has “not cited any case law that specifically addresses whether or not the use of a GPS while driving constitutes the type of recklessness that supports a punitive damages claim[]”. . . .

* * *

II. DISCUSSION

* * *

(B) DISTRACTED DRIVING CLAIM

Rockwell contends that Knott's use of his GPS while driving, when coupled with his supervisor's admonition to avoid use of a GPS while operating a vehicle, requires submission of the punitive damages claim to the jury based upon “the fact that [Knott] was practically operating a motor vehicle blindfolded after being told of the dangerous (sic) associated with the same and voluntarily ignoring those warnings.”(citation omitted). “Punitive damages are appropriate when an individual's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.” (citation omitted). Wanton misconduct or reckless indifference “means that ‘the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” (citation omitted). “Thus, in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” (citation omitted).

Punitive damages claims have been permitted against motorists in narrow sets of circumstances indicating unreasonable actions by defendants in conscious disregard of known or obvious risks which pose a high probability of harm to others. . . . [C]ourts have allowed punitive damages claims to proceed against . . . motorists who otherwise engage in wanton or reckless conduct. (citation omitted) (“Allowing a truck to go out on the road where the load could not properly be distributed because of a broken loading rack; not braking when travelling down hills so that the truck exceeded the speed limit; driving with limited visibility because the listing of the back of the truck obscured the view from the side mirror; and changing lanes under these circumstances without signaling is sufficient evidence to justify a jury's conclusion that the Defendants' conduct was outrageous”) . . . .

Although no Pennsylvania appellate court has yet to address the viability of a punitive damages claim predicated upon a motorist's use of an interactive wireless communications device or GPS application at the time of an accident, several trial courts in Pennsylvania have considered the recoverability of punitive damages in accidents involving cell phone use or text-based communication on a wireless communications device. In Kondash v. Latimer, (citation omitted), visiting Senior Judge Harold A. Thomson, Jr., declined to grant a motion to strike [a claim for punitive damages] that was filed by a defendant who allegedly caused an accident while “talking on, texting or otherwise utilizing a wireless phone, personal digital assistant ("PDA") or other handheld device.” (citation omitted). . . . (footnote omitted).

In contrast, the court in Xander v. Kiss, (citation omitted) concluded that a punitive damages claim against

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Punitive damages claims have been permitted against motorists in narrow sets of circumstances indicatingunreasonable actions by defendants in conscious disregard of known or obvious risks which pose a highprobability of harm to others. . . .

“Punitive damages are appropriate when an individual's actions are of such anoutrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.” (citation omitted). Wanton misconduct or reckless indifference “means that ‘the actor has intentionally done an act of anunreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” (citation omitted). “Thus, in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establishthat (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” (citation omitted).

engage in wanton or reckless conduct. (citation omitted)load could not properly be distributed not

braking when travelling down hills driving with limitedvisibility changing lanes under these circumstances without signaling

Although no Pennsylvania appellate court has yet to address the viability of a punitive damages claimpredicated upon a motorist's use of an interactive wireless communications device or GPS application

several trial courts have considered the recoverability of punitive damages in accidents involving cell phone use or text-based communication on a wireless communicationsdevice.

“talking on, texting or otherwise utilizing a wireless phone

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ALL OF THE HIGHLIGHTED DISCUSSION IS NEEDED TO EXPLAIN THE PRINCIPLES TO BE APPLIED. IN THE OUTLINE, NOTE WHERE THE TEXT IS LOCATED BUT DON’T WRITE IT OUT IN THE OUTLINE - USE THIS CONTENT IN THE FINAL ANSWER

NOTE THAT THESE CASES ARE NOT FROM PENNSYLVANIA APPELLATE COURTS

a defendant who “was speaking on his cellular telephone at the time of the accident” could proceed forward only if there was some “additional indicia of recklessness” besides the mere use of a cell phone. (citation omitted). More recently, Monroe County Judge Arthur L. Zulick similarly concluded in Platukis v. Pocono Segway Tours, LLC, (citation omitted) that cell phone usage alone does not give rise to a claim for punitive damages. In sustaining a demurrer that was filed by a defendant who “was using a cellular phone at the time of the collision, and was operating the Segway at an excessive rate of speed,” Judge Zulick reasoned that “[w]hile using a cellular phone while operating a motor vehicle is undoubtedly risky, that alone still does not give rise to the state of mind necessary to find [defendant] acted recklessly.”(citation omitted); see also (citation omitted) (citing Xander with approval, dismissing punitive damages claim against defendant who was allegedly using his cell phone while driving, and concluding that “itappears that the proper inquiry here is whether the allegations in Plaintiffs’ complaint constitute the type of ‘additional indicators’ or aggravating factors that could elevate Defendant's conduct from mere negligence to the type of willful, wanton or reckless conduct that would justify punitive damages.”).

* * *

Other jurisdictions have also applied different approaches when analyzing punitive damages claims against motorists who have allegedly caused accidents while speaking on cell phones. Most of those courts agree that cell phone usage alone is insufficient to support an award of punitive damages. (citation omitted)(“We have never ruled that using a cell phone while driving, alone, amounts to reckless indifference, and we decline to do so here.”). Some jurisdictions have concluded that the use of a cell phone, in combination with a violation of a Vehicle Code provision or other recognized rule of the road, creates a triable issue of fact regarding the recovery of punitive damages. (citation omitted) (denying motion for partial summary judgment relative to punitive damages claim against tractor trailer driver who was talking on his cell phone and had driven more than seventy hours in the eight-day period before the accident, in violation of 49 C.F.R. 392.3); (citation omitted) (denying motion to dismiss punitive damages claim against driver who “ran a red light, and ignored other warnings signs immediately prior to the accident because she was talking on her cell phone.”); (citation omitted) . . . . Other courts have adopted a heightened test that requires proof of “other aggravating circumstances,” beyond violations of the rules of the road, in order to recover punitive damages from a motorist who is using a cell phone at the time of the accident. (citation omitted) (stating that “evidence of mobile phone use did not, without more, establish a policy or pattern of dangerous driving,” and affirming dismissal of punitive damages claim since “there is no evidence of a policy or pattern of dangerous driving or other aggravating circumstances.”).

Texting while driving significantly increases the degree of driver distraction since it requires the motorist to completely divert his or her attention from the roadway as [s]he focuses upon the mobile device. As such, texting poses a much greater risk to pedestrians and other motorists than speaking on a cell phone. (citation omitted) (dismissing punitive damages claim against tractor trailer driver who “was talking on his hands-free cell phone at the time of the collision,” and finding that “[w]hile such conduct may be negligent, it does not show wanton and willful disregard of Plaintiffs' safety. . . .”). Indeed, Section 3316(a) of the Pennsylvania Vehicle Code, 75 Pa.C.S., only bans text messaging while driving and does not prohibit a motorist from engaging in cell phone conversations while driving. (citations omitted).

A motorist's use of a GPS device may, or may not, cause distracted driving depending upon the type and

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“additional indicia of recklessness” besides the mere use of a cell phone.

cell phone usage alone does not give rise to a claim for punitive damages.

the typeof ‘additional indicators’ or aggravating factors that could elevate Defendant's conduct from mere negligence to the type of willful, wanton or reckless conduct that would justify punitive damages.”).

Other jurisdictions

Texting while driving significantly increases the degree of driver distraction since it requires the motorist to completely divert his or her attention from the roadway as [s]he focuses upon the mobile device. Assuch, texting poses a much greater risk to pedestrians and other motorists than speaking on a cell phone.

Indeed, Section 3316(a)of the Pennsylvania Vehicle Code, 75 Pa.C.S., only bans text messaging while driving

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NOTE THAT THE MATERIAL IN THIS PART OF THE OPINION IS ALL PERSUASIVE, FROM OTHER JURISDICTIONS

placement of the GPS device and the concomitant operation of the vehicle. . . . Knott apparently did not possess . . . a bracket or holder since his cell phone was located in the cup holder of the center console at the time of the accident.

The position of the GPS device, the extent of the driver’s distraction, and the distance travelled by the vehicle during that period of diversion are important factors in determining whether the motorist is chargeable with outrageous conduct. (citation omitted) (semi-truck driver who “looked down at the open map on the seat next to him to verify driving directions” for a matter of seconds “was clearly negligent in the operation of his vehicle,” but was not liable for punitive damages). If the GPS device is affixed to the dashboard or windshield of the vehicle, such that the operator maintains peripheral vision of the roadway, a motorist’s split second glimpse at its screen is akin to a momentary glance at a speedometer or side or rearview mirror, and does not constitute reckless indifference or wanton misconduct. However, if a driver completely diverts his or her attention from the roadway to view a GPS device which is not located on the dashboard or windshield, and continues to travel in his or her vehicle without any view of the roadway or other traffic, [s]he may be deemed reckless.

In light of Richard Yarborough’s testimony that New Prime’s drivers are cautioned against using GPS navigation systems since such devices divert their attention from the roadway, a genuine issue of material fact exists as to whether Knott had a subjective appreciation of the risk of harm posed by use of a GPS. Although Rockwell alleged in his amended complaint that Knott’s attention was diverted “for a substantial and significant amount of time” due to the GPS device, the summary judgment record is devoid of any such proof. Even when viewed in the light most favorable to Rockwell, the record reflects that as the final approaching vehicle entered the intersection from the opposite direction, Knott looked at the GPS to ensure that he was at the correct intersection. Knott then “glanced back up” at the street sign for Washington Street, looked forward in the direction of oncoming traffic, and proceeded to take his foot off the brake as he began his left turn. Reasonable minds could not differ that such conduct by Knott does not constitute reckless, distracted driving.

If the record contained some evidence suggesting that Knott was viewing the GPS device positioned in the lower center console as he proceeded to make a left turn without yielding the right of way to Rockwell, in violation of Section 3322 of the Vehicle Code, 75 Pa.C.S., an issue of fact would exist as to whether Knott’s recklessly indifferent conduct warrants the submission of Rockwell’s punitive damages claim to the jury. At the summary judgment stage, Rockwell can no longer rely upon his averment that Knott was so distracted “for a substantial and significant amount of time,” and no such evidence is present in the record submitted for review. As a result, Rockwell’s evidence in support of his punitive damages claim against Knott is insufficient as a matter of law, and Knott’s motion for partial summary judgment will be granted.

1. The motion for partial summary judgment . . . is GRANTED; and

2. Count IV . . . setting forth claims for punitive damages against Defendants . . . is DISMISSED.

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The position of the GPS device, the extent of the driver’s distraction, and the distance travelled by thevehicle during that period of diversion are important factors

If the GPS device is affixed to the dashboard or windshield of the vehicle, such that the operator maintains peripheral vision of the roadway, a motorist’s split second glimpse at its screen is akin to a momentary glance at a speedometer or side orrearview mirror, and does not constitute reckless indifference or wanton misconduct. a driver completely diverts his or her attention from the roadway to view a GPS device which is not located on the dashboard or windshield, and continues to travel in his or her vehicle without any view of the roadway orother traffic, [s]he may be deemed reckless.

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85 A.3d 1071 (Pa. Super. 2014)

KARL SCHEMBERG, Jr., Appellant v. JAMES SMICHERKO, Appellee

Superior Court of Pennsylvania. February 11, 2014

Karl Schemberg, Jr. (Plaintiff) appeals from the November 8, 2012 order which sustained the preliminary objections of James Smicherko (Defendant) and dismissed Plaintiff’s complaint with prejudice. We reverse and remand for further proceedings consistent with this opinion.

The trial court summarized the facts and procedural history of this case as follows:

Plaintiff . . . filed a complaint against [Defendant] for negligence per se and negligence. Plaintiff is a police officer for the Borough of Kutztown Police Department. Around midnight on February 17, 2012, while on duty, [P]laintiff observed [D]efendant urinating in public against the side of a private residence which [P]laintiff believed was not [D]efendant's private residence in violation of municipal ordinances and state laws. Defendant ran away to avoid [P]laintiff's investigation. [Plaintiff] pursued [D]efendant and eventually apprehended him not far from the area where he first saw [D]efendant urinating. The area of the pursuit was not well lit, and [P]laintiff fell from a height between twelve inches to fifteen inches while pursuing [D]efendant. Plaintiff sustained injuries to his right leg which required, inter alia, surgery. Defendant pled guilty to violating the Borough of Kutztown ordinance prohibiting urination in public. Plaintiff contends in his complaint that [D]efendant committed negligence per se because he violated the ordinance of Kutztown Borough and 18 Pa.C.S.A. § 5104 which reads as follows:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

Defendant filed preliminary objections to the complaint contending that [P]laintiff was not able to prove claims of negligence per se and negligence. [The trial court] agreed with [D]efendant and sustained the preliminary objections.

(citation omitted).

Plaintiff filed a timely notice of appeal, and both Plaintiff and the trial court complied with Pa.R.A.P. 1925. Plaintiff presents the following questions for our review:

A. DID THE TRIAL JUDGE ERR IN CONCLUDING THAT [PLAINTIFF] COULD NOT ESTABLISH A CLAIM FOR NEGLIGENCE OR NEGLIGENCE PER SE BECAUSE THE STATUTE VIOLATED BY [DEFENDANT] WAS NOT INTENDED TO PROTECT A SPECIFIC GROUP OF INDIVIDUALS AS OPPOSED TO THE GENERAL PUBLIC?

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SCHEMBERG

Superior Court of Pennsylvania

SHORT FORM CASE NAME IS ALL THAT’S NEEDED. NOTE THE COURT WHO DECIDED THIS MATTER

B. DID THE TRIAL JUDGE ERR IN CONCLUDING THAT [PLAINTIFF] COULD NOT ESTABLISH A CLAIM FOR NEGLIGENCE PER SE OR NEGLIGENCE BECAUSE THE ACTIONS OF [DEFENDANT] WERE NOT THE PROXIMATE CAUSE OF THE INJURIES SUFFERED BY [PLAINTIFF]?

* * *

The concept of negligence per se establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm. However, a plaintiff, having proven negligence per se cannot recover unless it can be proven that such negligence was the proximate cause of the injury suffered.

We have defined negligence per se in the following fashion:

[Negligence per se is] conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances. Pennsylvania recognizes that a violation of a statute or ordinance may serve as the basis for negligence per se. However, a court will not use a statute or regulation as the basis of negligence per se where the purpose of the statute is to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public.

In order to prove a claim based on negligence per se, the following four requirements must be met:

(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;

(2) The statute or regulation must clearly apply to the conduct of the defendant;

(3) The defendant must violate the statute or regulation;

(4) The violation of the statute or regulation must be the proximate cause of the plaintiff's injuries.

(citations omitted).

The statute Plaintiff claims that Defendant violated provides as follows.

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

18 Pa.C.S. § 5104.

The trial court rejected Plaintiff's negligence per se claim based upon violation of this statute upon the following analysis: “[f]leeing the scene of a summary arrest, without more, does not create a substantial

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The concept of negligence per se establishes the elements of duty and breach of duty where anindividual violates an applicable statute, ordinance, or regulation designed to prevent a public harm.However, a plaintiff, having proven negligence per se cannot recover unless it can be proven that suchnegligence was the proximate cause of the injury suffered.

In order to prove a claim based on negligence per se, the following four requirements must be met:

(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;

(2) The statute or regulation must clearly apply to the conduct of the defendant;

(3) The defendant must violate the statute or regulation;

(4) The violation of the statute or regulation must be the proximate cause of the plaintiff's injuries.

18 Pa.C.S. § 5104.

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DEFINITION OF NEGLIGENCE PER SE IS NEEDED FOR THE ANSWER

NOTE THAT IS IS A TOTALLY DIFFERENT STATUTE, NOT ABOUT MOTOR VEHICLES

risk of bodily harm to a police officer. Moreover, [Defendant] did not employ any resistance which forced [Plaintiff] to overcome the resistance with substantial force.” (citation omitted) We disagree.

Plaintiff's complaint does not allege merely flight to avoid arrest. Plaintiff alleged that Defendant attempted to prevent Plaintiff from performing his duty by fleeing, in the middle of the night, through a poorly-lit area of uneven terrain. (citation omitted). Accepting these averments as true, and giving Plaintiff the benefit of all reasonable inferences therefrom, the fact finder could reasonably conclude that Defendant's flight created a substantial risk of bodily injury. (citation omitted). Therefore, it is not clear and free from doubt that Plaintiff will be unable to prove that Defendant violated 18 Pa.C.S. § 5104.

Defendant argues his preliminary objections were nonetheless properly granted because the purpose of Section 5104 is not to protect officers specifically, but rather the public in general. Defendant's Brief at 4. Again, we disagree.

Clearly the purpose of the statute is to protect the group of individuals, specifically including public servants, who find themselves in the zone of danger created by the individual preventing the public servant from discharging his or her duty. That the protected group includes bystanders as well as public servants does not make it so general as to prevent the application of Section 5104 in a negligence per seclaim.

For example, although the criminal code provision against underage drinking “represents an obvious legislative decision to protect both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age[,]” our Supreme Court held that violation of that statute constituted negligence per se. (citations omitted). Similarly, the intention to protect from harm manifested in the statute at issue in this case is more specific than provisions of the motor vehicle code; yet violations of [some] traffic laws constitute negligence per se. (citation omitted) (holding that passing in a no-passing zone, in violation of the vehicle code was negligence per se) (citation omitted) (“The law of this Commonwealth is clear that failure to obey a stop sign is negligence per se.”).

In contrast, statutes which this Court has held were too general to support a negligence per se claim involve statutes that less clearly indicate an intention to protect specific groups from specific types of harm. (citation omitted) (holding that there was no negligence per se claim based upon violation of Philadelphia Air Management Code, because “the purpose of the Code was to protect the ‘atmosphere over the City’ of Philadelphia, with . . . concomitant benefits to its ‘inhabitants.’” ).

Thus, we conclude that the purpose of 18 Pa.C.S. § 5104 is to protect the interests of a group of which Plaintiff is a member and applies to Defendant's alleged conduct, and that, accepting the facts alleged in Plaintiff's complaint as true, a fact-finder could reasonably conclude that Defendant violated the statute.

* * *

Because Plaintiff's complaint alleges facts which satisfy the requirements for a claim of negligence per se, (citation omitted) the trial court erred as a matter of law in granting Defendant's preliminary objections in the nature of a demurrer.

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Clearly the purpose of the statute is to protect the group of individualswho find themselves in the zone of danger created

yet violations of [some] traffic laws constitute negligence per se. (citation omitted) (holding that passing in a no-passing zone, in violation of the vehicle code was negligence per se) (citation omitted) (“The law of this Commonwealth is clear that failure to obey a stop sign is negligence per se.”).

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NOTE THAT IN A NEGLIGENCE PER SE APPLICATION, THE PURPOSE OF THE STATUTE MUST BE ADDRESSED (I.E., THE PLAINTIFF MUST BE IN A SPECIFIC GROUP TO BE PROTECTED BY THE STATUTE)

NEEDED TO SHOW NEGLIGENCE PER SE IS APPLIED FOR MOTOR VEHICLE ACCIDENTS

TALA

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MEMORANDUM OF LAW DATE: FEBRUARY 2017 TO: ETHAN ANDERSON FROM : APPLICANT RE: PASTERNAK vs. DENCH, NEGLIGENCE PER SE CLAIMS & PUNITIVE DAMAGES, BASED ON VIOLATION OF § 3316 INTRODUCTION We represent Patty Pasternak (“P”) who wishes to sue Daniel Dench (“D”) for injuries she suffered in a motor vehicle accident when her car was struck by a motorcycle driven by D. We plan to allege negligence per se for D’s violation of § 3316, which prohibits text-based communications while driving a motor vehicle. D was using his smart phone to play a video game while he was driving his motorcycle. He admitted to police that his cell phone was on his lap while he was driving; that he was speeding in excess of the limit; and took his eyes off the road to look at his phone, picked it up, sent, received, and read messages. As a result, his motorcycle hit a curb, flinging him off the motorcycle, and the motorcycle hit P’s car. Both P and D suffered serious injuries as a result of the collision. This memorandum addresses whether punitive damages can be assessed for violation of § 3316, whether D’s actions violated § 3316, and whether § 3316 can be used to support a claim of negligence per se. My conclusion is that all three claims are supported by the statute, caselaw, and the available facts, and that we should proceed with drafting a complaint. I. INCLUSION OF PUNITIVE DAMAGES CLAIM D’s actions support a claim by P for punitive damages, based on the opinion of the Common Pleas Court in Rockwell v. Glenn Knott (“Rockwell”), which addressed a motion for summary judgment in motor vehicle accident litigation involving use of a GPS application on a cell phone. In addressing punitive damages arising from a distracted driving claim, the court noted that “’Punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.’” (Rockwell) Wanton misconduct or reckless indifference was defined as when “’an actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” (Rockwell) In Pennsylvania, such a claim requires evidence that “’(1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, . . . , in conscious disregard of that risk.’” (Rockwell)

Comment [JML1]: 1 point for formatting and introduction, as well as subsequent citations to authorities in the Library and the documents in the File Comment [JML2]: 8 points

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The court noted that punitive damages claims had been permitted “in narrow sets of circumstances indicating unreasonable actions by defendants in conscious disregard of known or obvious risks which pose a high probability of harm to others.” (Rockwell) Examples were improper load distribution on a broken truck, failing to brake when going downhill and thereby exceeding the speed limit, driving a truck with obscured visibility from the side view mirror, and changing lanes without signaling. (Rockwell) Although the court noted that there were no appellate opinions in Pennsylvania about devices such as cell phones, the court cited to trial court decisions on point, where “’talking on, texting or otherwise using a wireless phone’” could support a claim for punitive damages. (Rockwell) However, another Pennsylvania trial court decision found that cell phone use alone was not adequate to support a claim for punitive damages in the absence of “’additional indicia of recklessness’” or “’aggravating factors.’” (Rockwell) In addition, the court noted similar persuasive decisions from other states’ courts requiring supporting facts beyond merely speaking on a cell phone. (Rockwell). The court noted that “Texting while driving significantly increases the degree of driver distraction since it requires the motorist to completely divert his attention from the roadway,” which “poses a much greater risk to pedestrians and other motorists than speaking on a cell phone.” (Rockwell). The court referred to § 3316, which bans text messages while driving. (Rockwell) The court wrote that “the position of [the device], the extent of the driver’s distraction, and the distance travelled during that period of diversion are important factors in determining whether the motorist is chargeable with outrageous conduct.” (Rockwell) A driver who “continues to travel in his or her vehicle without any view of the roadway or other traffic . . . may be deemed reckless.” (Rockwell). The police incident report includes statements by P that D was driving “erratically” and “at a high rate of speed,” “looking down at his leg,” and picking “up his cell phone with is right hand while tapping on the screen with his left hand.” P reported that D’s motorcycle “veered to the right, hitting the curb,” causing D to become “airborne.” The driverless motorcycle collided with the P’s car causing her injuries. D admitted to police that while driving his motorcycle “he was playing a video game on his smart phone,” “traveling in excess of the speed limit,” “taking his eyes off the road for at least five seconds” while playing the game. Furthermore, he admitted that right before hitting the curb he picked up his phone, “tapping the mobile device screen” to send an automatic message, “reading the resulting text message” response, and tapping his phone screen again to send a message that was part of the game. He said he knew “it was risky to speed and drive so close to the curb while playing” the game. As noted in the next section below, D’s actions violated § 3316 when he driving his motorcycle while playing the video game and sending/reading/receiving text messages as part of the game. His admissions to the police indicate his “conscious disregard of known or obvious risks which pose a high probability of harm to others.” (Rockwell) D admitted he was well aware of the risk

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his behavior posed, and his “outrageous” and “conscious” conduct to use his smart phone to play the video game and engage in text messaging while driving his motorcycle at an excessive rate of speed near the curb support P’s claim for punitive damages based on the “additional indicia of recklessness” or “aggravating factors” beyond simply speaking on a cell phone that were noted in the caselaw as demonstrating “intentional, willful, wanton, or reckless conduct.” (See Rockwell) Our client has sufficient facts to support a claim for punitive damages, and we should include that claim in our complaint. II. Section 3316 & CELL PHONE USE - VIDEO GAME PLAYING AND TEXTING WHILE DRIVING The fundamental issue to be addressed is whether D’s use a smart phone while driving his motorcycle, to play a video game and send, receive, and read text messages, violated § 3316. My conclusion is that D’s actions, as revealed in the police incident report and D’s admissions, clearly show that he violated the statute. Section 3316, titled “Prohibiting text-based communications,” states in subsection (a) that “No driver shall operate a motor vehicle on a highway . . . while using an interactive wireless communication device to send, read or write a text-based communication while the vehicle is in motion.” Subsection (b) defines “text-based communication” as “a text message, instant message, electronic mail or other written communication composed or received on an interactive wireless communications device.” Section 102 defines such a device as “a wireless telephone, personal digital assistant, smart phone, portable or mobile computer, or similar device which can be used for voice communication, texting, e-mailing, browsing the Internet or instant messaging. “Highway” is defined by § 102 as “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. “Motor vehicle” is defined by that section as “A vehicle which is self-propelled [which includes a motorcycle] . . . .” From the Police Incident Report, it appears that the accident occurred on a public “Highway,” which was the “intersection of First and Main Streets, Town, PA.” P was on First Street, in her car, stopped at a red light, and D was driving down Main Street on his motorcycle, towards the intersection with First Street. D’s motorcycle is specifically included in the definition of “Motor vehicle.” It is also uncontested that D was at the time of the accident using his smart phone, an “interactive wireless communication device” as defined in the statute. In the Police Incident Report, D admitted to using his smart phone to play the video game while he was driving his motorcycle, to watch for virtual coins on a map shown on his phone, and then collecting a virtual coin that he saw on his phone, by tapping the phone after seeing notice of the coin’s proximity on his phone’s display. He admitted he then read the confirming text message about collecting the coin, and he then sent an automatic message to other game

Comment [JML3]: 5 points

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players in response to a second tap on his phone. These actions, all done while his motorcycle was “in motion,” constitute actions to “send, read or write” messages while driving that § 3316 prohibits. Even if the tapping of the smart phone to send an automatic message was not an action to “compose” a message, D still received and read the other messages after the first one. III. VIOLATION OF § 3316 AS BASIS FOR CLAIM OF NEGLIGENCE PER SE From the applicable caselaw and facts, it is clear that D will be found to have violated § 3316 (beyond the Police Incident Report’s note of the decision of the Police to charge him) and that violation is an appropriate basis for a claim of negligence per se. The purpose of § 3316 is to prevent harm to a specific group of the public, motorists and pedestrians, and D’s actions were the proximate cause of D’s injuries. In Schemberg v. Smicherko (“Schemberg”) the Superior Court addressed a different statute than that which is involved in our matter, but it set out the groundwork for bringing a claim of negligence per se. The court noted that this claim can be brought “where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm” and the plaintiff can recover if able to prove the “negligence was the proximate cause of the injury suffered.” (Schemberg) The court set out a four-part test to prove a claim based on negligence per se:

“(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally; (2) The statute or regulation must clearly apply to the conduct of the defendant; (3) The defendant must violate the statute or regulation; (4) The violation of the statute or regulation must be the proximate cause of the plaintiff’s injuries.” (Schemberg)

For the first part of the test, the court noted that the “group of individuals” to be protected are those who find themselves in the “zone of danger” created by the defendant. (Schemberg) The court went on to note that “violations of [some] traffic laws constitute negligence per se” (including passing in a no-passing zone, or failing to obey a stop sign). (Schemberg) The ban on text messaging found in § 3316 was enacted to protect pedestrians and other motorists. (Rockwell) P, as a motorist on a highway, was a member of that group of individuals to be protected and not merely a member of the general public. D’s actions and admissions, noted in the Police Incident Report, support finding that he violated the statute by his use of his smart phone to play a video game and sending, receiving, and reading text messages associated with the game while driving his motorcycle on the public highway. Engaging in those prohibited actions caused him to lose control of his motorcycle, which hit the curb, and resulting in him being flung off his motorcycle, which collided with P’s vehicle, proximately causing her injuries. If D had not been violating the statute by his use of his smart

Comment [JML4]: 6 points

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phone to play a video game, he would probably not have lost control of his motorcycle and the collision with P’s vehicle would not have happened. In conclusion, we should include this claim in our complaint because P has sufficient facts to support a claim of negligence per se, to allege she can prove that D’s violation of the applicable statute in question fits all four parts of the Schemberg test.


In conclusion, here are some final suggestions:

Look at the other past Performance Tests from the Pennsylvania Board of Bar Examiners website.

Be sure to do at least a half-dozen Performance Test practice questions; the more you do, the more confident you will be regarding your ability to do well on the Performance Test.

Follow the test-taking procedures I have outlined for you. Don’t do only those that call for documents with which you are familiar. Pick questions that call

for memos, as did the sample exercise, but also pick persuasive documents, such as briefs, motions, and trial documents.

Do the practice exams under conditions that match those that will exist when you take your test.

I wish you the best of luck on the upcoming bar exam, and in your future careers!

[END OF HANDOUT]