Key Takeaways

  • Negligence requires proving FOUR elements: Duty, Breach, Causation (proximate cause), and Damages — all four must be present
  • Contributory negligence (pure bar) prevents ANY recovery if the plaintiff is even 1% at fault — only used in 4 states + DC
  • Comparative negligence reduces recovery by plaintiff's percentage of fault — either pure (any fault) or modified (50% or 51% bar)
  • Assumption of risk is a defense when the plaintiff knowingly and voluntarily exposed themselves to a known danger
  • Damages include compensatory (special + general), which make the plaintiff whole, and punitive, which punish egregious behavior
Last updated: December 2025

Negligence and Tort Law

Negligence is the foundation of most liability claims. Understanding how negligence works is essential for the P&C exam.

What Is Negligence?

Definition: The failure to exercise the degree of care that a reasonably prudent person would exercise under similar circumstances.

Key Concept: Negligence is unintentional wrongdoing. It's carelessness, not deliberate harm.


The Four Elements of Negligence

A plaintiff must prove ALL FOUR elements to establish negligence:

1. Duty of Care

Definition: A legal obligation to conform to a standard of conduct.

How Duty Is Established:

  • Relationship between parties (doctor-patient, driver-pedestrian)
  • Foreseeability of harm
  • Statutory duty (traffic laws, building codes)

Standard: What would a reasonably prudent person do?

2. Breach of Duty

Definition: Failure to meet the applicable standard of care.

Examples of Breach:

  • Speeding through a school zone
  • Not shoveling icy sidewalk
  • Failing to inspect equipment
  • Texting while driving

3. Proximate Cause

Definition: The breach must be the direct cause of the injury.

Two Components:

  • Cause in fact: "But for" the breach, injury wouldn't have occurred
  • Legal cause: Injury was foreseeable consequence of the breach

Example: Driver runs red light → hits pedestrian → pedestrian injured

  • Cause in fact: But for running the light, no collision
  • Legal cause: Injury was foreseeable

4. Damages

Definition: The plaintiff must have suffered actual harm.

Types of Damages:

  • Physical injury
  • Property damage
  • Economic loss
  • Pain and suffering

No Damages = No Negligence Claim Even if duty was breached, no lawsuit without actual harm.


The Memory Aid: DBCD

Duty → Breach → Causation → Damages

All four must be proven for a successful negligence claim.


Types of Damages in Negligence

Compensatory Damages

Purpose: Make the plaintiff "whole" again.

TypeWhat It CoversExamples
Special DamagesEconomic/pecuniary lossesMedical bills, lost wages, property repair
General DamagesNon-economic lossesPain and suffering, emotional distress, loss of consortium

Punitive Damages

Purpose: Punish defendant for egregious conduct and deter others.

When Awarded:

  • Gross negligence
  • Willful misconduct
  • Reckless disregard for safety
  • Malicious intent

Insurance Coverage: Often NOT covered (against public policy in many states).


Defenses to Negligence

1. Contributory Negligence

Rule: If the plaintiff is even 1% at fault, they recover NOTHING.

Status: Only 4 states + DC still use this:

  • Alabama
  • Maryland
  • North Carolina
  • Virginia
  • District of Columbia

Example: Jaywalker hit by speeding car. Jaywalker is 5% at fault. In contributory negligence state: Jaywalker recovers $0.

2. Comparative Negligence

Rule: Plaintiff's recovery is reduced by their percentage of fault.

Pure Comparative Negligence

  • Plaintiff recovers even if mostly at fault
  • Recovery reduced by fault percentage

Example: Plaintiff 90% at fault, $100,000 damages → Recovers $10,000

States: California, New York, Florida, and ~10 others

Modified Comparative Negligence

50% Bar Rule: Plaintiff recovers only if 50% or less at fault. 51% Bar Rule: Plaintiff recovers only if 49% or less at fault.

Example (51% Bar): Plaintiff 51% at fault → Recovers $0

States: Most states use modified comparative negligence.

3. Assumption of Risk

Rule: Plaintiff knowingly and voluntarily exposed themselves to a known danger.

Requirements:

  • Plaintiff knew of the risk
  • Plaintiff appreciated the risk's nature and extent
  • Plaintiff voluntarily exposed themselves

Examples:

  • Attending a baseball game (foul balls)
  • Skydiving
  • Skiing
  • Contact sports

Comparative Negligence Map

SystemRecovery RuleApproximate States
Contributory0% if any fault4 + DC
Pure ComparativeRecover even if mostly at fault~13 states
Modified 50%Recover if ≤50% at fault~10 states
Modified 51%Recover if <50% at fault~23 states

Special Negligence Doctrines

Res Ipsa Loquitur

"The thing speaks for itself"

When circumstances imply negligence without direct evidence:

  1. Event doesn't normally occur without negligence
  2. Defendant had exclusive control
  3. Plaintiff didn't contribute

Example: Surgical sponge left inside patient.

Negligence Per Se

Violation of statute = automatic breach of duty

If defendant violated a safety statute designed to protect people like plaintiff, breach is automatic.

Example: Driver runs red light and hits pedestrian. Traffic law violation = automatic breach.

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Negligence Elements and Defenses
U.S. States by Negligence System (%)
Test Your Knowledge

The four elements of negligence are:

A
B
C
D
Test Your Knowledge

In a pure contributory negligence state, if a plaintiff is 5% at fault for their $100,000 in damages, they will recover:

A
B
C
D
Test Your Knowledge

Assumption of risk applies when the plaintiff:

A
B
C
D