Legal Memo

To: Attorney John Smith, Esquire

From: Paralegal

Re: Westen Vs. Jane

Date: March 18, 2002

This memorandum follows your recent assignment where in you requested that I contact Mr. Mark Vision, who witnessed our client Mary Jane’s accident, and determine where Mr. Vision was in association with the accident, the approximate speed of the other vehicle, the weather conditions and any other information that would be useful in either shifting liability or alleging contributory negligence on the part of plaintiff/driver.

Analysis of the Interview

I contacted Mr. Mark Vision on March 4, 2002. He is an African American male, very tall with a slim build. He wore business casual clothes and he seemed a little nervous, but he was very respectful and well mannered. He was very forthcoming with all of the questions he was asked in the interview. He seemed very truthful and reliable and answered every question with a matter-of- fact attitude. He remembered the entire accident very vividly. He would make a favorable witness for our case, because he feels that Ms. Jane is not guilty.

Mr. Vision advised me that he was on the way to work at his part-time job Saturday March 18, 2002. The reason he did not give a statement at the time of the accident, was because he is the Manager and had to be at the company early to let the other workers in and didn’t want to keep them waiting. But Mr. Vision did give the Police his contact information.

It was raining that morning, so the roads were wet and slippery. Mr. Vision was driving in his Toyota truck about two car lengths behind Mr. Weston on Benson Street right before the accident. Mr. Vision was driving about 25 to 27 miles per hour and Mr. Westen was driving between 35 to 40 miles per hour. Mr. Vision states, he could see that the light had turned yellow, so he slowed down in caution of the light and the wet road. But, he said Mr. Westen did not slow down, and by the time Mr. Westen reached the intersection, the light was changing from yellow to red and he speed up to try and make the light. Upon doing so, the light turned green for Ms. Jane and Ms. Jane immediately pulled out to make her right turn on Martin Luther King Street and was hit by Mr. Weston. So, Mr. vision believes that Mr. Westen could have just stopped and waited at the light with him to be cautious, but Ms. Jane could have took a moment of caution herself and not have bolted out as soon as her light turned green. Mr. Vision don’t think that Ms. Jane is guilty of making an improper turn, however he feels she could have proceeded with a little more caution and Mr. Westen should have stopped at the light instead of speeding up to try and beat the light, and should have used more caution due to the weather.

Issue

Is Mr. Mark Benson guilty of contributory negligence?

Rule
Contributory Negligence (1) Plaintiff’s negligence (unreasonable) (2) cause in fact
Where "contributory negligence" principles are applied, if the plaintiff in any way contributed to his or her own injury, the plaintiff is barred from recovering damages. The extreme consequence of this approach has led to its being limited or abandoned in many jurisdictions.
Cause in fact: Once it is determined that the plaintiff was negligent (unreasonable), the next question is whether the plaintiff was a cause in fact of his or her own injury, along with the defendant. The plaintiff caused his or her own injury if he or she was s substantial factor in producing the injury.

Analysis

Ms. Mary Jane was not unreasonable negligent during the car accident. She was first accused of making an improper turn but, those charges were dismissed because she did not make an unsafe turn. She was well within her rights to make a right turn on a green light; therefore she was not negligence. Also, according to Mr. Mark Vision, the witness to the accident, Ms. Jane clearly had the right away and Mr. Jason Westen was speeding on a wet road, ran the light, and hit Ms. Jane in the middle of her turn.

Now according to the cause in fact rule, Mr. Westen may counter argue that Ms. Jane may be negligent. According to Mr. Vision, Ms. Jane bolted out to make a right turn as soon as her light turned green. She should have proceeded with caution due to the slick roads. Also, she was ticketed on the scene and successfully sued. So, there must be enough evidence of negligence.

Conclusion In conclusion, there is enough strong evidence to file a counterclaim, shift liability and allege a contributory negligence claim against Benson Westen, based on two reasons: First of all, according to the testimony from witness, Mark vision, Mr. Westen contributed to his own negligence by speeding, on a wet road and running a light. Secondly, the fact the Ms. Jane’s charges were dismissed, which proves she did not make any improper turn and was not negligence in making the right turn. With this evidence, a judge or jury may be persuaded that Mr. Benson Westen is guilty of contributory negligence and should be liable for the accident.