8.1 Negligence, Torts, and Legal Liability

Why Liability Concepts Dominate the Casualty Exam

The national casualty portion is built almost entirely on legal liability — the obligation to pay for harm you cause another party. Every casualty form you will sell (the ISO Commercial General Liability Coverage Form CG 00 01, the Personal Auto Policy PP 00 01, the Homeowners HO 00 03 Section II) responds to a single trigger: the insured becomes legally liable for bodily injury or property damage. If there is no legal liability, the policy pays nothing, regardless of how badly someone is hurt. Master this chain and the casualty questions become predictable.

The Three Sources of Legal Liability

Liability arises from three legal sources, and the exam expects you to classify a fact pattern into the right bucket:

Most liability claims are torts, and most torts are negligence. Intentional torts (assault, libel, slander) and strict-liability torts (abnormally dangerous activities, defective products) are tested but less common.

The Four Elements of Negligence

Negligence is the failure to use the degree of care a reasonably prudent person would use under the same circumstances. To win a negligence suit, the plaintiff must prove all four elements. Miss one and the claim fails — a favorite exam trap is a fact pattern where causation or actual damages is missing.

1. Duty — a legal obligation to act with reasonable care toward the plaintiff.
2. Breach — the defendant failed to meet that duty (an act or an omission).
3. Proximate cause — an unbroken chain links the breach to the injury; the harm was a foreseeable result.
4. Damages — the plaintiff suffered actual, measurable injury or loss.

Memory hook: D-B-C-D (Duty, Breach, Cause, Damages). A clumsy act that injures no one is not negligence — without damages there is no claim.

Negligence Per Se and Res Ipsa Loquitur

Two doctrines shift the proof burden in the plaintiff's favor:

• Negligence per se — violating a safety statute (running a red light) is treated as automatic breach of duty; the plaintiff need not separately prove the standard of care.
• Res ipsa loquitur ("the thing speaks for itself") — when an accident would not normally happen without negligence and the instrumentality was in the defendant's exclusive control (a surgical sponge left inside a patient), breach is inferred.

Neither doctrine eliminates the need to prove causation and damages — they only ease the duty/breach showing.

The Four Elements of Negligence

Liability questions almost always test the four elements a plaintiff must prove: (1) a duty owed by the defendant; (2) a breach of that duty; (3) proximate cause linking the breach to the harm; and (4) actual damages. Miss any element and the negligence claim fails. The exam phrases this as a fact pattern: a store with a wet floor and no warning sign breaches its duty to invitees, proximately causing a shopper's fall and injury — all four elements are met.

Intentional Torts, Strict Liability, and Standard of Care

Distinguish negligence (failure to use reasonable care) from intentional torts (assault, libel — generally excluded by liability policies) and strict (absolute) liability, which imposes liability without fault for inherently dangerous activities (blasting, keeping wild animals) and many products cases. The standard of care is what a reasonably prudent person would do under similar circumstances; professionals (doctors, accountants) are held to a higher standard of their peers, which is why professional liability/E&O exists separately.

Res Ipsa Loquitur and Negligence Per Se

Two doctrines ease a plaintiff's proof and appear as advanced items. Res ipsa loquitur ("the thing speaks for itself") infers negligence when the harm is of a type that ordinarily does not occur without negligence and the instrumentality was in the defendant's exclusive control (a surgical sponge left inside a patient). Negligence per se treats violation of a safety statute as automatic breach of duty (a driver who runs a red light and causes a crash). Both shift the analysis toward the defendant and frequently decide liability fact patterns on the exam.

Premises Liability: Duty by Visitor Class

Premises questions vary the duty by the visitor's status. To an invitee (a customer) the owner owes the highest duty — to inspect for and warn of or fix hidden dangers. To a licensee (a social guest) the owner must warn of known hazards. To a trespasser the owner owes only a duty not to cause willful/wanton harm, with a special attractive-nuisance rule protecting child trespassers near hazards like pools. Matching the duty to the visitor class decides many liability fact patterns.

Standard of Care Varies by Relationship

The duty owed is not uniform. A common carrier (airline, bus line) owes the highest degree of care to passengers. A property owner's duty depends on the visitor's status: highest to an invitee (a paying customer), a moderate duty to a licensee (a social guest), and the lowest to a trespasser — though even a trespasser is owed a duty not to be wantonly injured, and child trespassers trigger the attractive nuisance doctrine (an unfenced pool). Exam questions reward you for matching the correct duty level to the relationship described.