Negligence is the tort of careless harm. A defendant is liable when it owed the plaintiff a duty to take care, fell short of the standard that duty required, and thereby caused the plaintiff actual harm. Every negligence question on every exam walks the same four elements in the same order, and the plaintiff must prove all of them. Miss one and the claim fails no matter how sympathetic the facts.
Elements
- Duty. A legal obligation to take reasonable care, generally owed to foreseeable plaintiffs. Special rules govern landowners, professionals, and the usual absence of any duty to rescue.
- Breach. Conduct falling below the standard of the reasonable person in the circumstances.
- Causation. Actual cause, usually the but for test, plus proximate cause, which asks whether the harm was a foreseeable result of the risk the defendant created.
- Damages. Real harm. Negligence has no nominal damages, so a careless act that hurts nobody is not a tort.
Leading cases
- Palsgraf v. Long Island Railroad Co.: the majority held that duty runs only to plaintiffs within the zone of foreseeable danger, so an unforeseeable plaintiff has no claim.
- MacPherson v. Buick Motor Co.: a manufacturer owes a duty of care to foreseeable users of a dangerous product, not only to the person it sold to.
- Vaughan v. Menlove: the standard of care is objective, so a defendant's honest belief that he was being careful enough does not excuse him.
Where students go wrong
The first mistake is blurring duty and breach. Duty is a question of law for the judge about whether a relationship of care exists at all. Breach is a question of fact about whether this defendant fell short. Answering them together loses the points that sit in each.
The second is skipping damages because the facts are dramatic. State the harm, because the element is real and because it is the fastest sentence in the answer.
The third is treating causation as one idea. Actual cause and proximate cause do different work, and most close exam questions turn on the second, not the first.
FAQ
What order should I argue the elements in?
Duty, breach, causation, damages, then defenses. Graders read fast and follow that structure, so a heading for each element makes your issue spotting visible.
Is there ever a duty to rescue a stranger?
Generally no. Exceptions arise from a special relationship, from the defendant having created the peril, or from a defendant who begins a rescue and then abandons it, leaving the victim worse off.
Who decides duty, the judge or the jury?
The judge. Duty is a legal question. Breach and factual causation go to the jury where reasonable people could disagree.
Related terms
- Breach and the Reasonable Person
- Actual Cause and Proximate Cause
- Res Ipsa Loquitur
- Comparative and Contributory Negligence
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.