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P Figley
Journal of Legal Education, Vol 61, No 2, 2011, pp 245-263
Rule synthesis is the process of integrating a rule or principle from several cases. Teaching new law students how to synthesise rules is a critical component in training them to think like lawyers.
Rule synthesis has obvious utility for clinicians and others who supervise interns. Mastering synthesis skills can help students integrate doctrinal material and succeed on law school exams.
Students must learn to read a body of law and integrate their understanding of it into one simply stated, readily applied rule.
Students should not analyse an issue by doing a case-by-case comparison of the situation at hand with the cases on point. That kind of presentation is unsynthesised, and forces the reader to do what she expected the lawyer to have done for her, which was to read and analyse a set of cases and to present her with an explanation of how they tie together. To do this – to synthesise a rule – the attorney must examine the authorities that have applied a body of law in actual situations, derive from those applications the key principles of interpretation, and state those principles as a rule.
A rule should meet three criteria. First, it should be simply stated – concise enough for the reader to grasp easily. Second, it should be readily applied unambiguous because the terms have defined, non-circular meanings, specific enough to give guidance for a new set of facts, but not too narrow to be useful. Third, it should be consistent with the cases and law in the jurisdiction – if applied to the existing cases, the rule would accurately predict the outcome of each. Students should remember that they synthesise rules in the first place in order to predict the outcome of a legal problem they have been asked to address.
With a basic understanding of the goals of rule synthesis, students can address a whimsical problem and apply their developing skills. One such problem involves crabby Mrs McGinty and her garden hose. The goal is to predict from past practices when Mrs McGinty will turn her hose on visitors. After reading each scenario the students should be able to formulate a statement of Mrs McGinty’s holding in that instance. Once they have absorbed all the holdings they should synthesise a general rule for Mrs McGinty’s practice that is simply stated, readily applied, and consistent with all her prior actions. After they have synthesised their rule, they should be ready to predict what Mrs McGinty will do in new situations by applying their rule to new facts.
Mrs McGinty’s Garden Hose Practices
On Sunday, two neighbourhood boys, Cletis Culpeper and Tucker Carlton, Jr, sneaked onto Mrs McGinty’s property to taunt Mrs McGinty’s dog Houndie with sticks. Mrs McGinty came off the porch and doused the boys with water from the garden hose, yelling, ‘You varmints get off my lawn a-fore I shoot you dead!’ The boys ran away.
Rule: Uninvited people teasing the dog get hosed.
On Monday, Parson Skeeter nodded to Mrs McGinty from the sidewalk, and Mrs McGinty waved him over, calling ‘Parson Skeeter, come out of the sun for a spell and have some lemonade with me on the porch’. Parson Skeeter ambled up the driveway past the ‘Keep Out’ signs and sat a spell with Mrs McGinty, nodding repeatedly as Mrs McGinty regaled him with details of her battle with scabies.
Rule: Invited people do not get hosed.
On Tuesday, Trixie Pepper wandered onto Mrs McGinty’s property to pick honeysuckles for a bonnet she was making. Mrs McGinty sprang from behind the bushes with the garden hose, spraying Trixie and ruining her new home perm. Mrs McGinty shouted, ‘Trixie Pepper, you brazen jezebel, you better get off my lawn a-fore I shoot you dead!’ Trixie high-tailed it off Mrs McGinty’s property in a flash, sobbing the whole way.
Rule: Uninvited people taking flowers get hosed.
On Wednesday, Hooterville had its annual Founders Parade. Billy Joe Sandpiper was dressed as Abe Lincoln in a top hat and was walking down the street on stilts when suddenly a pig escaped from one of the 4-H cages, knocking Billy Joe over and onto Mrs McGinty’s property. Having seen the incident, Mrs McGinty came over, dusted Billy Joe off and offered him some lemonade.
Rule: Uninvited people in a civic celebration who are forced onto property through no act of their own do not get hosed and do get lemonade.
On Thursday, Cletis Culpeper was being chased by a swarm of hornets, so he ran onto Mrs McGinty’s property and dove into the pond in the backyard. Mrs McGinty saw the whole incident and laughed so hard, she fell clear off her rocking chair. She didn’t bother with the garden hose or the shotgun.
Rule: Uninvited people who come onto the property to avoid physical injury do not get hosed.
On Friday, Tucker Carlton, Jr. was chased onto Mrs McGinty’s property by Trixie Pepper, who was wielding a cricket bat and threatening to bash Tucker’s head in for using her best dress to keep his prize-winning piglets warm. In running from Trixie, Tucker trampled Mrs. McGinty’s patch of cucumbers (which she intended to sell at the county fair) and damaged the gate to Mrs McGinty’s chicken coop. Mrs McGinty did not spray Tucker with water, given the ferocity of Trixie’s swats with the cricket bat, but she immediately called his parents and demanded that they reimburse her for the damaged cucumbers and chicken coop.
Rule: Uninvited people who come onto the property to avoid physical injury do not get hosed but will be held responsible for any damage they cause.
From Mrs McGinty’s prior hosing decisions the students can synthesise a formula (rule) for predicting Mrs McGinty’s behaviour in future cases. The prior hosing decisions collectively might be synthesised into this rule:
A person who voluntarily enters Mrs McGinty’s property without permission will be hosed, regardless of the reason for entering onto the property, unless entry is necessary to avoid physical danger, in which case the person is liable for actual damage to the property.
This rule is easily understood, readily applied, and consistent with Mrs McGinty’s prior actions.
At this point the students are ready to apply their rule to new scenarios – the application part of their analytical structure. The instructor should highlight that the students will apply their synthesised rule to the facts of the client’s case to reach a conclusion. Given the rule they have synthesised for Mrs McGinty, the students can predict what would happen in new situations:
Holly Golightly tiptoes quickly into Mrs McGinty’s garden to pick a tomato.
A kid on a bike in the Sunflower Parade loses control and crashes onto the property.
A parade watcher intentionally jumps over the fence and onto the property to get out of the kid’s way, squashing four of Mrs McGinty’s squash.
They will readily see that Holly voluntarily entered the property without permission and will be hosed. They will correctly predict no hosing for the child who lost control of his bike and did not enter the property voluntarily. Likewise, they will calculate that the parade watcher who jumped the fence to avoid injury falls within the exception and would not be hosed, but would be liable for any resulting damages.
The students should now be ready to work in small groups on rule synthesis using real cases. To help focus their analysis, students can use a fact situation involving a banana peel slip-and-fall case in Massachusetts:
Sandy Banks was excited to visit the historic sites of Boston. Upon arriving in the city Sandy went immediately to Faneuil Hall, even though it was 4:30 am. Sandy then slipped and fell. Although in great pain, Sandy looked around and spotted a brown, leathery banana peel, six inches in length, lying on the grey, slate floor.
Custodians employed by Faneuil Hall are responsible for sweeping up every night after the businesses close at 9:00 pm (6:00 pm on Sundays).
The students should then be asked whether Sandy will be able to recover damages from Fanueil Hall. They should recognise that they do not know the answer.
Four Massachusetts banana peel slip-and-fall cases provide a good vehicle for this classroom exercise because they are very short and readily understood. As a general matter, someone in control of a premise has a tort duty to keep the floor reasonably clear of hazards. Negligence will be found if the defendant unreasonably fails to clean a hazard off its floor and someone slips on that hazard, falls and is injured. On the other hand, there will be no negligence if a plaintiff slips on a hazard that the defendant exercising reasonable care did not know was there. In these Massachusetts cases there was no direct evidence (eyewitnesses, photographs, etc.) that the defendant had breached its duty to keep its premises safe. The issue in each was whether the plaintiff had presented enough circumstantial evidence to support the conclusion that the defendant had sufficient notice of the hazard (the presence of a banana peel) so that it could have removed that hazard but negligently failed to do so.
The evidence showed that the plaintiff was a passenger who had just arrived, and was about the length of the car from where he alighted when he slipped and fell. There was evidence that there were many passengers on the platform. There was evidence that there were many passengers on the platform.
The banana skin upon which the plaintiff stepped and which caused him to slip may have been dropped within a minute by one of the persons who was leaving the train. It is unnecessary to go further to decide the case.
The students might derive this holding (rule) from the case:
Rule iA: A jury may not infer that a defendant was negligent for failing to remove a banana peel if a ‘just arrived’ passenger may have dropped it.
The plaintiff arrived on one of defendant’s cars on the upper level of the Dudley Street terminal; other passengers arrived on same car, but it does not appear how many. She waited until the crowd had left the platform, when she inquired of one of defendant’s uniformed employees the direction to another car. He walked along a narrow platform, and she, following a few feet behind him toward the stairway he had indicated, was injured by slipping upon a banana peel. It was described by several who examined it in these terms: It ‘felt dry, gritty, as if there were dirt upon it’, as if ‘trampled over a good deal’, as ‘flattened down, and black in color’, ‘every bit of it was black, there wasn’t a particle of yellow’, and as ‘black, flattened out and gritty’. It was one of the duties of employees of the defendant, of whom there was one at this station all the time, to observe and remove whatever was upon the platform to interfere with the safety of travellers. These might have been found to be the facts.
The inference might have been drawn from the appearance and condition of the banana peel that it had been upon the platform a considerable period of time, in such position that it would have been seen and removed by the employees of the defendant if they had been reasonably careful in performing their duty.
In Anjou the court issued a judgment against the railway when a woman slipped on a ‘dry, gritty’ banana peel, ‘black in color’ because the jury could have inferred that ‘it had been on the platform a considerable period of time’. The students might derive this holding (rule).
Rule iB: A jury may infer that a defendant was negligent for failing to remove a banana peel if its appearance and condition suggest it had been on the floor for a considerable period of time.
Evidence showing only that plaintiff slipped and fell on banana peeling on stairway owned by defendant, and open to public, held insufficient to support recovery, absent any showing of defendant’s negligence.
Here, a woman slipped on a ‘black as tar’, ‘smoothed down’, ‘soft’ banana peel on a stairway. Despite a jury verdict for the plaintiff, judgment was entered for the defendant. The court reasoned, ‘There was no evidence of negligence on the part of the defendant. The banana skin may have been dropped a moment before by a stranger to the defendant, or have come upon the stair without fault of the defendant’.
This result seems surprising and apparently at odds with the rule derived from Anjou. It is unlikely that the quandary arose from Mascary misinterpreting Anjou; Justice Rugg wrote both opinions. He evidently thought the decisions were consistent, explaining that ‘[a]dditional factors tending to show negligence of the defendant present in Anjou ... distinguish that case from the case at bar’. Perhaps some confusion arose from the Anjou headnote which stated that the banana peel’s ‘black, flattened out, and gritty’, [condition] authorised an inference that it had not been dropped a moment before by a passenger, and consequently furnished evidence of negligence ...’.
Obviously the Mascary court saw more in Anjou than was included in our Rule iB. Upon re-reading Anjou, the students will note (with guidance) its statement that:
[Ms. Anjou] waited until the crowd had left the platform, when she inquired of one of defendant’s uniformed employees the direction to another car. He walked along a narrow platform, and she, following a few feet behind him toward the stairway he had indicated, was injured by slipping upon a banana peel ... It was one of the duties of employees of the defendant, of whom there was one at this station all the time, to observe and remove whatever was upon the platform to interfere with the safety of travellers.
Because the actions and duties of the employee are the only facts in the Anjou opinion other than the plaintiffs actions and the condition and location of the banana peel, they likely are the ‘[a]dditional factors tending to show negligence of the defendant present in Anjou’, noted in Mascary. With this information and the outcome in Mascary, the students might derive this holding (rule).
Rule iC: A jury may infer that a defendant was negligent for failing to remove a banana peel if its appearance and condition suggest it had been on the floor for a considerable period of time, and an employee of the defendant was present [and/or, guided plaintiff to the hazard] [and/or, was assigned the duty to observe and remove hazards].
Judgment entered for plaintiff.
In Scaccia, a passenger boarded a bus at its terminus, rode for nine minutes, and then slipped on a banana peel near the front of the bus while departing. The banana peel was ‘four inches long, all black, all pressed down, dirty, covered with sand and gravel, dry and gritty looking’. At the terminus, the bus had stopped for several minutes and all passengers had departed.
Based on the condition of the banana peel the court allowed the inference of negligence: ‘We think that it could be found that the peel had remained on the floor of the bus so long that in the exercise of due care the defendant should have discovered and removed it’. The court noted that no one was likely to carry a black banana peel onto a bus. It went on to distinguish Goddard and Mascary, stating:
In Goddard, the banana peel did not appear to be other than fresh. In Mascary, where a banana peel was much like that described in the Anjou case, it lay on stairs leading from the street, and might have been recently thrown there by a child in play.
The students might conclude Scaccia made this holding (rule).
Rule iD: A jury may infer that a defendant was negligent for failing to remove a banana peel if its appearance and condition suggest it had been on the floor for a considerable period of time, and no one other than its patrons or employees could have placed it there [and/or, a recent inspection should have discovered it].
At this juncture, each group should synthesise a rule from all four cases together. One such synthesised rule might be:
A jury may infer that a defendant was negligent for failing to remove a banana peel if its appearance and condition suggest it had been on the floor for a considerable period of time, and either an employee of the defendant was present, or no one other than its patrons or employees could have placed it there.
Working in their small groups, the students are now in a position to answer the question of whether Sandy Banks can recover for the injury at Faneuil Hall. They should apply their synthesised rule to the facts presented.
Teaching them this skill with actual cases exposes them to a situation that they correctly perceive to be authentic and realistic. Having mastered their synthesis skills in class with short but genuine opinions, they are prepared to synthesise rules from longer opinions on their own.
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URL: http://www.austlii.edu.au/au/journals/LegEdDig/2012/26.html