8.1 Negligence, Torts, and Legal Liability

Why Liability Rests on Tort Law

Liability insurance pays sums an insured becomes legally obligated to pay as damages to a third party. Legal obligation almost always arises in tort — a civil wrong, other than breach of contract, for which the law allows a remedy. The exam expects you to separate the three branches of tort and to apply the four-part negligence test to fact patterns.

The Three Categories of Tort

Trap: Unintentional negligence drives most claims. An insured who intends the harm triggers the expected-or-intended exclusion, so the policy generally will not respond.

The Four Elements of Negligence

To recover, a claimant must prove all four. Miss one and there is no liability, so the insurer owes nothing.

1. Duty — a legal obligation to exercise the care of a reasonably prudent person.
2. Breach — failure to meet that standard of care (an act or omission).
3. Proximate cause — an unbroken causal chain links the breach to the harm; the harm was a foreseeable result.
4. Damages — actual, measurable injury or loss occurred.

Standard of Care and Special Duties

The baseline is the reasonably prudent person. Some defendants are held higher: professionals (physicians, accountants) owe the skill of a competent practitioner; common carriers owe their passengers the highest degree of care. Property owners owe different duties depending on the entrant:

• Invitee (customer): highest duty — inspect for and warn of hidden dangers.
• Licensee (social guest): warn of known dangers.
• Trespasser: only a duty not to willfully injure (the attractive nuisance doctrine raises this for child trespassers near pools, machinery, etc.).

Negligence Per Se and Res Ipsa Loquitur

Two doctrines shortcut the proof of negligence and appear regularly on the national exam.

• Negligence per se — violation of a statute (e.g., speeding) is treated as breach automatically when the statute was meant to prevent that type of harm.
• Res ipsa loquitur ("the thing speaks for itself") — negligence is inferred because the harm normally would not occur without negligence and the instrumentality was in the defendant's exclusive control (a surgical sponge left in a patient).

Statutory vs. Common-Law Liability

Contractual liability matters because most liability policies exclude liability the insured assumes by contract unless it falls within a defined insured contract carve-back.

From Negligence to a Covered Claim

The path from a careless act to an insurer payment runs through every element above, then through the policy's own definitions. Even a clear case of negligence pays nothing if the resulting harm is not a covered category of loss (bodily injury or property damage) or if an exclusion applies. This is why the national exam blends tort concepts with policy language: the tort establishes legal liability, while the contract decides whether the insurer must respond.

The Reasonable-Person Standard in Practice

The reasonable-person test is objective — it asks what a hypothetical prudent person would have done, not what this particular defendant believed was reasonable. A defendant's good intentions, inexperience, or personal limitations do not lower the bar. Children are judged against other children of similar age and experience, and emergencies are weighed in context, but the core standard stays objective.

Foreseeability and Proximate Cause

Proximate cause is more than a 'but for' link; it limits liability to harms that were a foreseeable consequence of the breach. An unforeseeable intervening cause can break the chain and relieve the defendant. The classic exam pattern: an insured's small negligence sets off a bizarre, unforeseeable sequence — the court may find no proximate cause, and therefore no liability for the remote harm.

Exam tip: When a fact pattern stresses how unexpected or remote the final injury was, the tested concept is usually proximate cause / foreseeability, not duty or breach.

Absolute (Strict) Liability Situations

Certain activities impose liability without any showing of fault because they are inherently dangerous or because public policy assigns the risk to the actor. Memorize the recurring categories: keeping wild or dangerous animals, abnormally dangerous activities (blasting, storing explosives, crop dusting), and defective products that cause injury (products liability).

In these situations the claimant need not prove the four negligence elements — only that the activity or defect caused the harm. Workers compensation is the other great no-fault system: the employer is liable for job-related injury regardless of fault, and the employee gives up the right to sue in tort, an exchange the national exam frames as the workers compensation 'bargain.'