Free Legal Memo Template

A complete memo on a negligence claim — two legal issues, each in CREAC structure, with citation placeholders for the jurisdiction-specific authority. Use this as a reference for what a finished memo looks like.

MEMORANDUM

TO:      Supervising Attorney
FROM:    Junior Associate
DATE:    June 3, 2026
RE:      Pena v. Davis — Likelihood of Recovery on Negligence Claim

QUESTION PRESENTED

Under [State] tort law, can a pedestrian struck while crossing a road mid-block recover for negligence from a driver who was traveling five miles per hour over the posted speed limit on a wet road, where the pedestrian was distracted by her phone and did not check for traffic?

BRIEF ANSWER

Probably yes, with reduced recovery. Davis's speed-limit violation likely establishes breach under negligence per se. Pena's mid-block crossing while distracted constitutes substantial comparative fault — likely 30-40%. In a modified comparative negligence jurisdiction, recovery is permitted unless plaintiff's fault exceeds 50%; expected recovery is approximately $24,000-$28,000 of the $40,000 in damages.

STATEMENT OF FACTS

On [date], during a rainstorm, Davis was driving five miles per hour above the posted speed limit on a four-lane road. Visibility was clear despite wet pavement. Pena, walking near a crosswalk, stepped off the curb mid-block while looking at her phone and did not check for oncoming traffic. Davis attempted to brake but struck Pena. Pena sustained a broken arm and $40,000 in medical bills. The jurisdiction follows modified comparative negligence.

DISCUSSION

I. Davis is Likely Liable for Negligence

A court will likely conclude that Davis was negligent because his speed-limit violation establishes breach under the negligence per se doctrine.

To prevail on a negligence claim, the plaintiff must establish (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the breach caused the plaintiff's injury, and (4) the plaintiff suffered damages. Restatement (Third) of Torts: Phys. & Emot. Harm § 6.

Drivers owe a duty of reasonable care to all foreseeable road users, including pedestrians. Id. § 7. Where a defendant violates a statute designed to protect the class of plaintiff from the type of harm involved, breach is established as a matter of law under the negligence per se doctrine. Id. § 14. Speed limits are designed to protect road users — including pedestrians — from collisions of this kind, satisfying the doctrine's class-of-plaintiff and type-of-harm requirements. Causation requires both actual ("but for") and proximate (foreseeability) cause. Id. § 26.

Here, Davis owed Pena a duty of reasonable care as a foreseeable pedestrian. His speed-limit violation likely establishes breach via negligence per se. Causation is satisfied: but for the excessive speed, Davis's braking distance would have been shorter, and the collision could have been avoided. Damages — broken arm and $40,000 in bills — are clear. The opposing party may argue the five-mph violation was de minimis on a wet road, but the per se doctrine does not require gross violation; any violation of a protective statute suffices.

Accordingly, the analysis favors a finding of negligence against Davis.

II. Pena's Recovery Will Be Reduced by Comparative Fault

A court will likely apportion 30-40% of fault to Pena based on her mid-block crossing while distracted, reducing but not barring recovery.

In a modified comparative negligence jurisdiction, plaintiff's recovery is reduced by her percentage of fault and barred entirely if her fault exceeds 50%. [Insert jurisdiction-specific statute or leading case].

Pedestrians owe themselves a duty of reasonable care, including looking for traffic before entering a roadway. Comparable case law in this jurisdiction apportions roughly 30-40% to pedestrians in similar postures — distracted, mid-block, and entering against traffic — particularly where the driver's conduct also breaches a clear duty. [Insert representative caselaw].

Here, Pena stepped off the curb mid-block while looking at her phone and did not check for oncoming traffic. A reasonable pedestrian would have looked for traffic before entering the road, particularly mid-block where crosswalk protections do not apply. The opposing party will press for a higher percentage of fault — perhaps 50% — arguing that the phone distraction is dispositive. However, Davis's speeding violation places a greater share of fault on him under the per se doctrine; courts in this jurisdiction have rarely apportioned more than 40% to pedestrians in comparable cases.

Accordingly, Pena's recovery is likely to be reduced by 30-40% but not barred.

CONCLUSION

Recommend proceeding with the negligence claim. Expected recovery in the $24,000-$28,000 range. If discovery reveals additional facts about Davis's conduct (e.g., distraction by his own phone, prior speeding citations) the expected recovery could shift upward. Recommend deposing Davis to develop the factual record on distraction and any prior driving violations.