Negligence. An overview of the big daddy of Torts

Negligence is one of those words that everyone knows what it means.  Someone should have acted with more care and not put another in harms way.  Simply put, they were careless.  However, in the legal world, Negligence is the big show when we talk about torts.

Below I’m going to review the area of Negligence in broad strokes. I will do a much more detailed discussion of each element in future installments of this series.

As we know, there are 4 main ingredients in a negligence case:

  • DUTY
  • CAUSATION (Actual and Proximate Cause)

(5 if we include defenses).  When laid out correctly, the prima facie case serves as a great way to remember them all. For example: The Defendant had a duty to behave in a certain way and not subject the plaintiff to unreasonable risk of injury, the defendant breached that duty which was the actual and proximate cause of the harm suffered by the plaintiff which damaged the plaintiff (or his property).

Although Defense doesn’t show up in the prima facie case, it is an important part of any negligence case and would be an incomplete answer without.

Let’s take a look at each of the elements of negligence


Duty dictates that everyone owes everyone else a general duty of reasonable care.  A duty to not subject others to unreasonable risks of harm that is foreseeable.  So if there is a chance that you may injure someone, you should take precautions to refrain from doing so.

Within duty, there are two main ingredients to look for.  1. What kind of duty was owed (standard of care) and 2) to whom was it owed? The standard of care covers several different groups including children, certain professions, land owners, common carriers and some protected classes. Based on the activity and the class of person, the duty will reflect on the activity that is being done.  (See the duty/standard of care review).

When we ask about who are we trying not to harm, we mainly look to possibility of harm by determining if they were foreseeable vs. remote (Palsgraff).  Typically, the Cardozo majority view and the Andrews minority view should be covered in your answer to show that you know them both.


The second element is breach.  Most every negligence question will have a breach component otherwise there wouldn’t be a case!  Breach is defined as the failure of the duty of reasonable care. In a breach there are a few main things to look for.  One is Res Ipsa Loquitur (the thing speaks for itself).  If there is an unexplained situation, you can use circumstantial evidence to avoid a directed verdict (Judge tells jury how to vote) and show that the negligence is inferred.  Another is when questioning the actions of the defendant, you use the risk vs. utility test.  This formula, also called the Learned Hand Test (after the Judge who created it) balances out the likely hood of the harm against the severity of the harm to determine if the plaintiff’s actions were reasonable.  The last two types of breach are determined by standards set for a specific profession or local custom or usage.


Causation is the next element.  Causation refers to the scope of liability of the plaintiff.  To prove liability, we must show both actual (cause in fact) cause and proximate (legal) cause.  The actual cause is the but for test.  If we can show that “but for” the defendants action the harm would not have resulted, then it is an actual cause.  (Don’t call it “the” actual cause.  There are an infinite number of potential causes). Having shown actual cause, we must now show proximate cause.   The quickest way to determine this is to look to the result of the harm. While there are other potential intervening, independent actions that can come into play while doing the analysis, if the final outcome is foreseeable, then generally, the defendants action is the proximate cause of the harm.


In torts, the goal of damages is to make the plaintiff whole again, at least to where he was prior to the harm. Be careful not to confuse damage with damages.  Damage is the harm suffered by the plaintiff.  Damages are compensation for the plaintiff.   Whether the harm is physical, emotional or economic there are various ways to compensate the plaintiff should they win their case. There are awards to repair harm to a property, punitive damages to punish the tortfeasor in addition to limits on damages such as duty to mitigate (aka avoidable consequence rule) and collateral source rule.


Any complete answer needs to include a discussion on defenses.  Even though the plaintiff may have a strong case, there may be a valid defense that can be used to exonerate the defendant. There are four defenses for a negligence charge.  Contributory Negligence is an older defense that tries to show the plaintiff was partially to blame for his harm and was a complete bar to recovery of damages.  In order to overcome the harshness of contrib negligence, the Last Clear Chance doctrine was established.  This holds that if defendant had the last clear chance to avoid the harm, then the plaintiff is not barred from recovery.  Comparative negligence is the third defense.  There are two versions of comparative negligence where one allows recovery even if you did contribute to your own harm as long as it’s at or below 50% (depending on jurisdiction).  The other version will allow damages regardless of the amount the harm the plaintiff suffered. Finally, assumption of the risk.  When the plaintiff voluntarily is involved in the action that causes the harm, he may be denied recovery.

So there you have it. The quick and dirty of Negligence.  Check back for detailed discussions on each element of the prima facie case.  And don’t forget the defenses!


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