Before and after true topic sentences.
Don’t do this:
In Williams v. Tulsa Motels, 958 P.2d 1282, 1284 (Okla. 1998) a business invitee brought a negligence action against hotel owners seeking recovery for injuries sustained in a slip and fall. Williams, 58 P.2d at 1284. The Oklahoma Supreme Court held that “It is clear that the danger of the wet floor was open and obvious and Williams knew of the danger when he chose to walk on the wet floor.” Id. at 1285 (emphasis added). Thus, the Supreme Court held that the wet floor that the business invitee slipped on was an open and obvious danger that hotel owners had no duty to protect against. Id. at 1284-85.
In Dover v. W.H. Braum, Inc., 111 P.3d 243 (Okla. 2005), the Supreme Court held that there was “no obligation to warn an invitee who knew the condition of the property against patent and obvious dangers and there is no actionable negligence in the absence of a duty neglected or violated.” Id. at 246. The court further held that the defendant did not enhance a natural hazard; thus, there was no duty on the part of store to warn patron or alter premises to protect patron who slipped and fell on ice while leaving the store. Id.
Moreover, in Safeway, Inc. v. Sanders, 372 P.2d 1021, 1023 (Okla. 1962), the Oklahoma Supreme Court held that placement of a chair in an aisle did not create a hidden or inherently dangerous condition. As a result, the store owner was not liable for injuries of customers who should have observed the chair in the exercise of due care. Id. The Court held that the chair was plainly visible, and there was nothing inherently dangerous about it. Id. “The duty to keep premises safe for invitees applies only to defects which are in the nature of hidden dangers, and the invitee assumes all normal or obvious risks attendant on the use of the premises.” Id.
Do this:
A property owner has no duty to protect an invitee against a danger the invitee knows about. Dover v. W.H. Braum, Inc., 111 P.3d 243, 246 (Okla. 2005). In Dover, the court affirmed summary judgment, holding that a store owner had no duty to warn a patron who slipped and fell on ice while leaving the store. Id. The patron had admitted seeing the ice when entering the store. Id.
But the danger need not be actually known; there is no duty to an invitee as long as the danger is “open and obvious.” Williams v. Tulsa Motels, 958 P.2d 1282, 1284 (Okla. 1998). There, an invitee sued a motel for injuries sustained in a slip and fall. Id. at 1284. In affirming summary judgment, the court held that the danger of a wet floor was open and obvious and that the plaintiff should have known of the danger when he chose to walk on the wet floor. Id. at 1285.
Put another way, an open and obvious danger is one that is “plainly visible.” Safeway, Inc. v. Sanders, 372 P.2d 1021, 1023 (Okla. 1962). Thus, a store owner was not liable for injuries to customers who should have seen a plainly visible chair in the store aisle. Id. Summary judgment was affirmed. Id. at 1024.
May 14th, 2010 at 5:39 pm
Thank you for the great example.
May 15th, 2010 at 12:57 am
The revision is better because the legal propositions begin each paragraph. But the other sentences in each paragraph seem to relate more to the citation following the topic sentence rather than the topic sentence itself. If we imagine that the citations were in footnotes, we’d be lost without referencing the footnotes. The writer assumes that the reader will understand that the sentences following the citation refer to the citation. That assumes too much. This is because a reader can just as well assume that there are numerous cases standing for such propositions as: there is no duty to warn of open and obvious dangers. If the proposition is basic and general, then there is no need to discuss the facts of cases so holding. If a particular case is important for its facts, then the reader would like more context–at the very least, a mention of the case’s name in the same sentence in which the facts of the case are discussed.
May 18th, 2010 at 5:43 pm
This is outstanding. Make your point, and then use the case law to illustrate the point’s truth. The only change I would make (which may be what David Z is getting at) is that I’d be more explicit about the case names. In the second sentence of the second (revised) paragraph, I’d start, “In Williams, . . . ,” and in the third paragraph, I’d write the third and fourth sentences this way: “Thus, in Safeway, the court affirmed the trial court’s order granting summary judgment and dismissing the plaintiffs’ complaint because the customers should have seen a plainly visible chair in the store aisle.”
I find students tend to slip into ambiguity when referring to precedent in ways such as “there,” “in this case,” or just, as in your third paragraph, implicitly. It’s simple enough, without being annoying, to write “In Smith, . . . ,” thereby leaving no ambiguity that you are referring to the precedent just cited rather than, perhaps, the case in which you have submitted the brief or an earlier precedent.
And I like the emphasis on what the court you are writing should do in sticking to the active voice in that third paragraph (that is, “The court affirmed the trial court’s order granting summary judgment dismissing the plaintiffs’ complaint . . . “).
May 21st, 2010 at 9:47 am
Building on Peter’s point, I just finished another stint as a moot court judge, where the student briefs looked, as always, much more like the first version. I tell them that after they do their research and know what the law is — or what they want to say the law is — they should write the brief without using cases. (I use empty parentheses after each substantive statement as a placeholder for the supporting authority that exists but isn’t yet being cited.) Then, after they’ve constructed a coherent argument, they should work cases into the argument’s existing structure.
May 26th, 2010 at 8:30 am
Excellent. In any type of persuasive writing, whether you are writing to a judge or writing to your grandmother, topic sentences should be argumentative. That is, they should be debatable or contestable, where someone would say, “I have a problem with that.”
I tell writers to do this exercise to gauge the effectiveness of their topic sentences: cut and paste them all, in order, to a blank document. What you should have is a Cliffs Notes version of your argument. If your argument topic sentences are merely facts–such as court holdings or quotes or dates or any declaration–you’ll have no argument.