Chapter 3 – Use Umbrella Paragraphs to Organize a Legal Point that is Divided into Sub-Points
Learning Outcomes
- Be able to explain the purpose of umbrella paragraphs.
- Be able to write concise umbrella paragraphs.
Citations to New York case law are in New York Law Reports Style Manual form.
Citations to federal case law are in Bluebook form.
Umbrella Paragraphs Defined
Umbrella paragraphs are simply introductory paragraphs that help to organize an objective memo or persuasive brief and inform readers about what is to come. They make the points that follow easier for a reader to understand. They are typically found under a point heading in an argument section of a brief that is further divided into sub-points, and sub-points that are further divided into sub-sub-points.
Give your readers an umbrella paragraph or paragraphs anytime you divide a point into sub-points.
For example:
Point 1. This Court Should Grant the Defendant Driver’s Motion for Summary Judgment Because He was Not Negligent as a Matter of Law
Umbrella paragraphs that introduce sub-points A and B
A. The Sole Cause of the Collision Was the Plaintiff’s Sudden Cross Over to the Defendant’s Lane of Traffic Which Constitutes an Emergency
B. The Defendant Driver Drove Reasonably Given the Severe Weather Conditions.
Point 1-A. The Sole Cause of the Collision Was the Plaintiff’s Sudden Cross Over to the Defendant’s Lane of Traffic Which Constitutes an Emergency
Umbrella paragraphs that introduce sub-sub-points 1, 2 and 3
1.
2.
3.
Umbrella paragraphs give readers an overview of the law to be applied and a roadmap outlining the specific points to be addressed. They let the reader know about the conclusions the writer will reach in the sub-points that follow and the broad rule that governs the sub-points.
Umbrella paragraphs should be concise, you should generally have several at most. They are designed to orient the reader and prepare them for what is to come. They are not meant for advancing arguments or reciting facts. The umbrella paragraphs under the first point heading should include the broad rule of law applied, listing elements as necessary, and the conclusion briefly supported by facts or reasons in each sub-point that follows. Do not define elements at this point. Leave that for the body of the discussion. Let the reader know if only some of the elements are at issue. For example, you would include this sentence in the umbrella paragraphs that introduce a brief in opposition to summary judgement of a claim for intentional infliction of emotional harm where only two of four elements are at issue:
A plaintiff must establish four elements to prove a claim for intentional infliction of emotional harm: (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress. Only the first and third elements are at issue.
Umbrella paragraphs under a sub-heading that is divided in sub-sub-headings, introduce the sub-sub arguments that follow. They should include the broad rule, if any, that governs each of the sub-sub-points and the conclusion reached in each sub-sub-point.
Annotated Umbrella Paragraphs as Examples
Here is an annotated umbrella paragraph that introduces two subpoints, and one that introduces sub-sub points:
AS A MATTER OF LAW, THE DEFENDANT DID NOT VIOLATE THE PLAINTIFF INMATE’S RIGHTS BECAUSE HE DID NOT KNOW THE INMATE WAS AT RISK OF HARM AND BECAUSE HE TOOK REASONABLE MEASURES TO PROTECT HIM
A prison official, such as the defendant, is not liable for failure to protect a prisoner unless he both knows the prisoner is at risk of harm and he does nothing to prevent it. Farmer v. Brennan, 511 U.S. 825 (1994). Officials are not charged with guaranteeing prisoners’ safety, all they need to do is make “reasonable efforts” to keep them safe, and this applies only when they actually know the prisoner is at risk. Id., at 833 [1] The evidence before this Court demonstrates that as matter of law the defendant did not know the plaintiff was at risk of harm because no one ever told him that other prisoners had threatened him. Moreover, the evidence before this Court demonstrates that as a matter of law even if he had known the plaintiff was at risk of harm, he took reasonable measures to protect him when he stood guard outside the cell block the night the plaintiff was assaulted. [2]
A. The Defendant Did Not Know the Inmate Was at Risk of Harm Because No One Told Him Other Inmates Had Threatened Him
B. The Defendant Took Reasonable Measure to Protect the Inmate When he Had a Guard Stand Outside of the Inmate’s Cell and When he Later moved Him to Another Pod
Prison officials who know an inmate is at risk of harm are not liable unless they are “deliberately indifferent” to that risk. The requisite state of mind lies “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Farmer, 511 U.S. at 833. [3] Here the Defendant was not even negligent since he took reasonable measures to protect the inmate the day he arrived in the prison and again the next day. [4]
1. Knowing the Inmate was a Convicted Child Murderer the Defendant Ordered a Guard to Stand Outside the His Cell for Three Hours When He Arrived
2. Concerned About His Safety as a Convicted Child Murderer the Defendant Moved the Inmate to Another Cell Block the Next Day
Exercise 3-1
Question: Read the following case excerpt and then write the umbrella paragraph(s).
Include that the broad rule that governs the sub-points is Chapman v. Silber, 97 N.Y.2d 9 (2001) (holding that landlords are on constructive notice of a hazardous lead paint condition when he or she (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based paint was banned, (3) was aware that paint was chipping or peeling on the premises, (4) knew that lead paint was hazardous to young children, and (5) knew that young children lived in the apartment). Id., at 15.
Assume and let your reader know that only the third and fourth elements are at issue.
[Umbrella paragraph(s) would be here]
A. There is a question of fact whether the defendant property owner knew chipping and peeling lead paint existed within his rental property because…
Plaintiffs raise a triable issue of fact about a landlord’s notice that there is chipping paint in her rental property when they present evidence from which it may be inferred that the property owner knew that paint was chipping or peeling on the premises. Jackson v. Brown, 26 A.D.3d 804, 805 (4th Dept. 2006). While the Brown plaintiff failed to directly inform her property owner of the chipping and peeling paint, the court held the parties’ testimony specifying the peeling paint was in plain sight, coupled with the fact the property owner entered the apartment frequently while the condition existed, was sufficient to infer the property owner knew of the chipping and peeling lead paint condition. Id.
The Brown holding establishes that oblivious property owners cannot hide from what is obvious. The Brown plaintiff successfully defeated the landlord’s motion for summary judgment by showing the court it simply did not matter that the property owner was not explicitly informed of the chipping paint because the condition lay in plain sight, obvious and observable as opposed to latent.
The evidence before this Court raises a question of fact as to whether Simon knew of the presence of chipping and peeling lead paint inside 67 Pine Street. During Benjamin Curtis’ deposition, he testified that while walking through the upper unit with Simon, he noticed chipping paint on the upstairs interior porch that was “hard to miss.” R. 47. Additionally, during his own deposition, Simon testified he toured the property with Mr. Curtis during a scheduled viewing and entered the property to fix the bathroom sink later in the rental period. R. 61-62. Ultimately, the deposition transcripts of both parties place Simon on the porch, where Mr. Curtis testified the paint chips were “hard to miss” and later, in the bathroom, where paint chips existed on every window well and track. R. 47, 52-62.
Much like the plaintiff’s mother in Brown, Mr. Curtis did not inform Simon of the chipping paint directly, but this omission does not matter. Rather, just as the chipping paint lay in plain sight in Brown, Mr. Curtis’ testimony indicates the paint chips on the porch were “hard to miss.” R. 47. Furthermore, just as the testimony in Brown acknowledged the property owner entered the apartment more than once, the record before this Court reflects that Simon entered the apartment and walked about locations where paint chips were clearly visible on two separate occasions.
That fact Simon denies ever seeing the paint chips is irrelevant. Tellingly, when Mr. Simon entered the apartment for the second time, he testified that it was “a bit messy; there were toys everywhere.” R. 61. Mr. Simon was aware of his surroundings enough to comment on the cleanliness of the Curtis’ lifestyle, yet somehow, he did not notice the chipping paint throughout the apartment, and specifically, the bathroom window wells and tracks where he performed repairs later on. Regardless, what Mr. Simon claims he did or did not see should be left to a jury.
Accordingly, just as the Fourth Department held there was sufficient evidence in Brown to infer the landlord knew chipping paint existed in his apartment, this Court must examine the record before it and find that because Mr. Simon twice presided over paint chips in plain sight within his property, his knowledge of the chipping paint can be inferred and a triable issue of fact exists. Since there are questions of fact about Mr. Simon’s knowledge of the chipping and peeling paint, and if, as demonstrated in the next section, there is a question of fact regarding Mr. Simon’s knowledge that lead paint is hazardous to children, this Court must reverse the lower court’s order granting the motion for summary judgment.
B. There is a question of fact whether the defendant knew lead paint was dangerous to children because…
Plaintiffs need only raise the inference a defendant knew of the hazards of lead-based paint to children in order to defeat summary judgment. Jackson v. Vatter, 121 A.D.3d 1588 (4th Dept. 2014). The Vatter plaintiff raised an issue of fact based on evidence that the defendant subscribed to a local newspaper that carried a number of articles about the hazards. Id., at 1589.
Similarly, in Brown, despite the defendant’s contentions otherwise, the Fourth Department found a triable issue of fact based on evidence the defendants subscribed to the Buffalo News and read it regularly. The Buffalo News published numerous articles discussing the hazards lead-based paint posed to children. Brief for Respondent at 6, Jackson v. Brown, 26 A.D.3d 804 (4th Dept. 2006) (No. CA 05-01826).
Importantly, other courts have held that what a defendant knows or doesn’t know regarding the hazards of lead-based paint to children is a question for a jury, regardless of what the defendant says. See Abreu v. Huang, 298 A.D.2d 471, 751 NYS2d 410 (2d. Dept. 2002) (finding a jury is allowed to infer a defendant knew of the danger of lead paint to children and is a question of fact that cannot be found as a matter of law). Moreover, the Fourth Department has held that equivocal and poor testimony can be evidence of a question of fact alone. See Watson v. Priore, 104 A.D.3d 1304, 1305 (4th Dept. 2013) (holding that the defendant’s vague and equivocal denials during testimony created a question of fact as to his knowledge and precluded his summary judgment request). In Watson, the defendant-landlord testified that “he could not recall whether there was peeling or chipping paint, and that he had ‘no problem’ with chipping or peeling paint.” Id. at 1306. Revealingly, the court in Watson viewed these statements by the property owner, coupled with his testimony conceding to the other Chapman elements, as evidence that triable issues of fact existed based off testimony alone. Id.
The evidence before this Court raises a question of fact whether Mr. Simon knew lead-based paint was dangerous to children. During his deposition, Mr. Simon testified that he could not recall whether he read the lease agreement he used, which contained a “known lead-based paint hazards” warning and disclosure provision. R. 59-60.
Like the property owner in Watson, who provided suspect denials and inconsistencies regarding critical facts, and the defendants in Williams, whose testimony was littered with vague observations and denials, Mr. Simon has provided vague denials regarding whether he read his own lease agreement used with multiple properties. Just as the court in Williams considered a defendant’s equivocal testimony and vague denials sufficient to raise a triable issue of fact, Mr. Simon’s equivocal testimony regarding the contents of the lease agreement he used and his vague denials regarding his knowledge of chipping paint, raise triable issues of fact as well.
Mr. Simon also testified that he had no idea of the dangers of lead paint to children because he did not have children and never learned of the dangers during his time spent in the military. R. 59-64. However, in addition to reading multiple newspapers, Mr. Simon testified he read his local Amvets Newsletter for the past ten years. R. 64. The Amvets Newsletter contained a paragraph inviting veterans and their relatives to attend a workshop about “the effects of exposure to lead on children…[c]ome learn how to make sure your kids are safe!” Just as the newspaper articles discussing the dangers of lead paint were sufficient to infer the defendant knew of the dangers of lead paint in Vatter, the fact that Mr. Simon admitted to reading even just one publication discussing the hazards of lead paint to children, is enough to infer Mr. Simon knew of the hazards lead-based paint posed to children.
The fact that Mr. Simon was never directly informed of the dangers of lead paint does not matter. The facts before this Court show Mr. Simon had multiple documents discussing the dangers of lead-based paint to children in his physical possession. He has the lease agreement he used to rent 67 Pine Street to the Curtis family, highlighting the dangers of lead paint generally, and the Amvets Newsletter, highlighting the dangers of lead paint to children. Indisputably, both documents were firmly in his possession. Therefore, these facts alone, infer Mr. Simon knew of the hazards lead paint posed to children and raise a triable issue of fact.
Now that you completed this chapter, you should be able to add umbrella paragraphs to introduce your reader to the points you raise in your analysis or argument.
