8.1 Negligence, Torts, and Legal Liability
Key Takeaways
- A tort is a civil wrong other than breach of contract; negligence is the most common basis for a liability claim and the most heavily tested element.
- The four elements of negligence are Duty, Breach, Causation, and Damages (memory aid: DBCD) and the plaintiff must prove all four.
- Liability arises three ways: negligence, intentional torts, and absolute (strict) liability for ultrahazardous activities.
- Proximate cause has two parts: cause in fact (the but-for test) and legal cause (foreseeability); an unforeseeable intervening cause breaks the chain.
- Most liability insurance covers negligent (unintentional) acts; intentional acts are excluded, which is a frequent exam trap.
Civil Wrongs and the Source of Liability Claims
A tort is a civil wrong (other than a breach of contract) that causes injury to another person and for which a court may award damages. Liability insurance responds to torts, so understanding tort categories is the gateway to every casualty coverage. The three categories tested are negligence, intentional torts, and absolute (strict) liability.
Most liability policies cover negligence — unintentional carelessness. Intentional torts (assault, battery, libel) are generally excluded, though some are restored under specific coverages such as Personal and Advertising Injury.
The Four Elements of Negligence (DBCD)
Negligence is the failure to use the degree of care a reasonably prudent person would use under similar circumstances. To win, the plaintiff must prove ALL four elements.
1. Duty of Care
A legal obligation to meet a standard of conduct. Duty arises from a relationship, the foreseeability of harm, or a statute (traffic laws, building codes).
2. Breach of Duty
Failing to meet that standard — speeding in a school zone, leaving an icy walk unsalted, or texting while driving.
3. Proximate (Legal) Cause
The breach must directly cause the harm. It has two parts: cause in fact (the but-for test) and legal cause (foreseeability). An unforeseeable intervening cause can break the chain.
4. Damages
Actual, measurable harm. No damages, no claim — even if a duty was clearly breached.
Special Negligence Doctrines
Two doctrines make it easier for a plaintiff to prove a breach.
| Doctrine | Meaning | Classic example |
|---|---|---|
| Res ipsa loquitur | "The thing speaks for itself" — negligence inferred from the circumstances | A surgical sponge left inside a patient |
| Negligence per se | Violating a safety statute is an automatic breach | A driver runs a red light and strikes a pedestrian |
Res ipsa loquitur applies when (1) the event would not normally occur without negligence, (2) the instrumentality was in the defendant's exclusive control, and (3) the plaintiff did not contribute to the harm.
Categories of Legal Liability
Beyond ordinary negligence, the exam tests two other ways liability attaches.
- Intentional torts — deliberate acts that cause harm (assault, battery, false imprisonment, defamation). Liability policies usually exclude these as intentional acts.
- Absolute (strict) liability — liability imposed regardless of fault for ultrahazardous or inherently dangerous activities such as blasting with explosives, storing toxic chemicals, or keeping wild animals. The injured party need not prove negligence at all.
Exam trap: A defendant can be liable under strict liability even when every reasonable precaution was taken. Fault is irrelevant; the activity itself triggers liability.
Standard of Care and How Courts Measure Breach
The reasonably prudent person standard is objective: the question is not what the defendant believed was careful, but what a reasonable person would have done. Professionals (doctors, accountants, agents) are held to a higher standard measured against others in their field, which is why their exposure is written as professional liability rather than ordinary CGL.
Courts weigh the foreseeability of harm, the burden of taking precautions, and the gravity of the potential injury. A low-cost precaution against a serious foreseeable harm makes a failure to act look far more like a breach.
Why the Insurance Distinction Matters
Liability insurance is third-party coverage: it pays a person the insured injured, not the insured. Because the trigger is the insured's legal liability, the four negligence elements are exactly what the insurer's claims team and defense counsel will test before paying.
| Concept | Negligence | Intentional tort | Absolute liability |
|---|---|---|---|
| Fault required | Carelessness | Deliberate act | None |
| Typically insured | Yes | Usually excluded | Limited (activity-based) |
| Exam example | Icy walk not salted | Punch thrown in anger | Blasting damages neighbor |
Exam trap: Candidates confuse strict liability (no fault, dangerous activity) with negligence per se (statute violation that proves the breach element of an ordinary negligence claim). Strict liability removes the fault question entirely; negligence per se still requires a negligence framework.
Intervening and Superseding Causes
A defendant's breach must be the proximate cause of the harm. Sometimes a later event interrupts the chain.
- An intervening cause occurs after the defendant's act and contributes to the injury. If it was foreseeable, the defendant remains liable.
- A superseding cause is an unforeseeable intervening event that breaks the chain and relieves the defendant.
Example: A driver negligently leaves a car blocking a lane. A second driver, distracted by texting, plows into it. The first driver's negligence may still be a proximate cause if a second collision was foreseeable; a wholly bizarre, unforeseeable event would instead supersede and cut off liability.
Which list correctly states the four elements a plaintiff must prove to establish negligence?
Statutory and Contractual Liability
Not all liability comes from common-law torts. Two other sources appear on the exam.
- Statutory liability is imposed by law regardless of negligence. Workers compensation is the leading example: an employer pays statutory benefits for on-the-job injuries without the worker proving fault.
- Contractual liability arises when a party assumes another's liability by agreement, such as a lease or a construction contract. The CGL provides limited coverage for liability the insured assumes under an insured contract.
Exam trap: Workers compensation is statutory, no-fault, and excluded from the CGL; it requires its own policy rather than the general liability form.
A demolition company carefully follows every safety regulation while blasting, yet flying debris damages a neighbor's roof. On what basis is the company most likely liable?