14.2 Negligence

Negligence is conduct that falls below the standard of care a reasonably prudent person would exercise, causing foreseeable injury. Unlike intentional torts, negligence requires no intent to harm — carelessness is enough. On the NALA Certified Paralegal (CP) exam, you must be able to state the elements in order, apply the causation tests, and recognize when a special doctrine changes the analysis.

The Four Elements

A prima facie negligence case requires: (1) duty, (2) breach, (3) causation (both actual and proximate), and (4) damages. Miss any element and the claim fails.

1. Duty of Care

Every person owes a duty to act as a reasonably prudent person would under the same or similar circumstances. The standard is objective — the defendant's subjective good faith, clumsiness, or low intelligence is no excuse. The standard is modified for certain defendants:

• Professionals (physicians, attorneys, accountants) are held to the standard of a reasonable member of that profession in good standing — this is the basis of malpractice. Physicians are traditionally measured against others in similar practice; most jurisdictions now apply a national standard for specialists.
• Children are held to the standard of a reasonable child of like age, intelligence, and experience — unless the child engages in an adult activity (such as driving a car or operating a motorboat), in which case the adult standard applies.
• Common carriers and innkeepers traditionally owed the highest degree of care; modern law generally applies ordinary reasonable care.

No duty to rescue: as a general rule, there is no affirmative duty to aid a stranger in peril. Exceptions arise when the defendant created the peril, a special relationship exists (carrier-passenger, innkeeper-guest, employer-employee, or a business open to the public and its invitees), or the defendant voluntarily begins a rescue — then the rescuer must act reasonably and cannot abandon the victim leaving them worse off. Many states add Good Samaritan statutes protecting rescuers from negligence liability.

Landowner duties historically varied by the entrant's status: unknown trespassers were owed only a duty to refrain from willful or wanton harm; licensees (social guests) were owed warnings of known hidden dangers; invitees (business visitors) were owed reasonable inspection and care to make the premises safe. A minority of states have collapsed these categories into a single reasonable-care standard.

2. Breach

Breach is the failure to meet the applicable standard of care. Judge Learned Hand's formula from United States v. Carroll Towing Co. frames it economically: a party breaches when the burden of precaution (B) is less than the probability of harm (P) times the magnitude of the loss (L) — negligence exists when B < PL. Custom in an industry is relevant evidence of the standard of care but is not conclusive.

3. Causation

Actual cause (cause in fact) is most often tested by the but-for test: but for the defendant's breach, would the harm have occurred? Where two independent acts are each sufficient to cause the harm (two fires merging), courts use the substantial factor test. For indivisible harm caused by multiple tortfeasors, several states apply alternative liability (Summers v. Tice), shifting the burden to each negligent defendant to disprove causation.

Proximate cause (legal cause) limits liability to harms within the scope of the foreseeable risk. The canonical case is Palsgraf v. Long Island Railroad (1928): a railroad was not liable when guards pushed a passenger, whose dropped fireworks package exploded and tipped a scale onto Mrs. Palsgraf at the far end of the platform — she was outside the foreseeable zone of danger. Key rules:

• Intervening causes that are foreseeable do not cut off liability; superseding causes (unforeseeable intervening events) do.
• The eggshell plaintiff rule: the defendant takes the plaintiff as he finds him — liability extends to the full harm even if the plaintiff's pre-existing frailty made the injury far worse than foreseeable.

4. Damages

The plaintiff must prove actual damages — personal injury or property damage. Unlike intentional torts such as trespass, negligence is not actionable without harm; nominal damages are unavailable. Emotional distress alone is generally not compensable unless accompanied by physical impact or injury, or within limited negligent infliction of emotional distress (NIED) rules — the 'zone of danger' test or, for bystanders, rules like California's Thing v. La Chusa factors.

Special Doctrines

Dram shop statutes vary widely: some states impose liability only for sales to minors, others extend to visibly intoxicated adults, and some reject the theory entirely, channeling liability onto the drinker.

Wrongful Death and Survival

At common law, tort claims died with the victim. Every state now has two statutory fixes. A wrongful death statute creates a new cause of action brought by statutory beneficiaries (spouse, children, sometimes parents) for their own losses — lost support, companionship, and society. A survival statute preserves the decedent's own claim — the estate recovers what the decedent could have recovered had he lived, including medical expenses and pre-death pain and suffering. The two actions are often joined but compensate different losses.

Paralegal Scenario

A pedestrian is struck in a marked crosswalk by a driver who ran a red light. As the intake paralegal, you organize the file around the four elements: duty (drivers owe reasonable care to pedestrians), breach (running the light — and the traffic statute gives you negligence per se because the statute exists to protect pedestrians from exactly this harm), causation (but-for the red light, no collision; broken leg is a foreseeable result), and damages (hospital records, wage statements, and a pain-and-suffering narrative). You also calendar the statute of limitations immediately and note the driver's insurer's policy limits for the damages memo.

Common exam traps: (1) skipping actual cause to jump to proximate cause — analyze both; (2) treating res ipsa as strict liability — it is only an inference of negligence the defendant can rebut; (3) applying negligence per se when the harm is outside the statute's protected class of risks (a fireworks-storage statute does not make the violator per se liable when a shelf collapses); (4) forgetting that the eggshell plaintiff rule expands damages, not the duty analysis; (5) assuming a stranger has a duty to rescue.