13.1 Elements of Negligence

The Paralegal CORE Competency Exam (PCCE) tests torts as an elements-and-labeling skill. A tort is a civil wrong, other than breach of contract, for which the law supplies a remedy — usually damages, sometimes an injunction. Domain 2 asks you to name the theory (negligence, intentional, or strict), tick the elements, and spot the defense or the remedy. Later sections in this chapter cover intentional torts and strict liability, defenses and insurance, and the damages/injunction menu. This section is negligence, the most common theory in a personal-injury or premises file.

Negligence is not a moral scolding for carelessness. It is a four-element cause of action: duty of care, breach of that duty, causation, and damages. Every element must be proved. If any one is missing, the claim fails even if the other three are picture-perfect. PCCE items are built to drop one box. Your first move is always the checklist, not a story about who seems more sympathetic.

Duty of care

Duty is a question of law: did this defendant owe this plaintiff a legally recognized obligation to take care? The default is the reasonable-person standard. A person must act as a reasonably prudent person would under the same or similar circumstances. The test is objective. A sincere belief that the conduct was safe does not create or satisfy a duty. The question is what a reasonable person would have done, not what this defendant wished were true.

The reasonable person has the defendant's physical disabilities (a blind person is judged as a reasonably careful blind person) and is placed in any genuine emergency not of the defendant's making. Mental illness or below-average intelligence generally does not lower the standard for adult defendants. Children are usually judged by a child of like age, intelligence, and experience — unless the child is engaged in an adult activity (driving a car, operating a motorboat), in which case the adult standard applies.

Special relationships can create or heighten a duty, including a duty to protect the plaintiff or to control a third person. Classic pairs: common carrier and passenger; innkeeper and guest; land possessor and lawful entrant; employer and employee; school and student; parent and dangerous child; a business that holds its premises open to the public. A psychiatrist's duty to warn a known, identified victim (Tarasoff-style jurisdictions) is a control/protect variant. Absent a special relationship, there is generally no duty to rescue a stranger. A passerby who watches a child drown, and who did not create the peril, has committed no negligence. If the defendant begins a rescue, many jurisdictions require that the rescue not be abandoned in a way that leaves the victim worse off, and Good Samaritan statutes may protect a gratuitous rescuer from ordinary negligence.

Professionals — physicians, lawyers, accountants, engineers — are measured by the skill and knowledge of a reasonably competent member of the profession in good standing, not by the lay reasonable person. Custom in the profession is powerful evidence of the standard; an entire profession can still be careless. Specialists are held to the specialty. Informed consent is a negligence theory in most modern courts: the professional must disclose material risks a reasonable patient (or, in some states, a reasonable physician) would want to know. It is still duty-and-breach analysis, not battery, unless the procedure is completely different from the one consented to.

Landowners and possessors historically owed different duties by the status of the entrant:

• Invitee (business visitor or public invitee): duty to inspect, to make the premises reasonably safe, and to warn of known or reasonably discoverable dangers.
• Licensee (social guest): duty to warn of known hidden dangers; no general duty to inspect for unknown conditions.
• Trespasser: generally no duty except to refrain from willful or wanton injury. A discovered trespasser, or a child injured by an attractive nuisance (a dangerous artificial condition the occupier should know children will encounter, that children will not appreciate, and that can be remedied at slight burden relative to the risk), can trigger a duty of reasonable care.

Many states have abolished the three-tier system and impose a unified duty of reasonable care to all lawful entrants (and sometimes to all persons on the land), often still treating undiscovered trespassers more harshly. On the PCCE, know both the traditional labels and that a unified-duty jurisdiction will not turn on invitee versus licensee. Do not invent a state's choice; apply the rule the stem supplies, or flag both.

Vicarious liability is not a fifth negligence element. Respondeat superior holds an employer for an employee's tort committed within the scope of employment. It is a way to add a deep pocket after the employee's tort is proved. An independent-contractor default is no vicarious liability, with exceptions for nondelegable duties and apparent agency.

Breach

Breach is the failure to meet the duty — a question of fact once the duty is defined. The classic economic formulation is the Hand formula (United States v. Carroll Towing Co.): if the burden (B) of the untaken precaution is less than the probability (P) of the harm times the gravity (L) of the expected loss — B < P × L — failure to take the precaution is negligent. You will not compute a dollar figure on the exam. The idea is that reasonable care balances the cost of precaution against foreseeable risk. A grocery store that leaves a spill for forty minutes has a cheap mop and a likely, serious fall. A homeowner who does not rebuild a house to fortress standards against a one-in-a-million event has not automatically breached.

Custom in an industry is evidence of what is reasonable. It is not an automatic shield and not an automatic sword. An entire industry can under-protect (The T.J. Hooper: tugboats without radios). Negligence per se borrows a safety statute, ordinance, or regulation as the standard of care when (1) the plaintiff is in the class of persons the provision was designed to protect, and (2) the harm is the type of harm it was designed to prevent. A driver who runs a red light and hits a pedestrian has typically breached as a matter of law; the remaining fight is causation and damages. Excuse — emergency, incapacity, or compliance more dangerous than violation — can take the case out of per se treatment and return it to ordinary reasonable care. A licensing statute is not always a per se standard; some courts treat lack of a license as evidence only.

Res ipsa loquitur ("the thing speaks for itself") lets the fact-finder infer breach from the accident when (1) the event is of a kind that does not ordinarily occur without negligence, (2) the instrumentality was in the defendant's exclusive control (modern formulations relax this toward the defendant being the more probable responsible actor), and (3) the plaintiff did not contribute. A barrel falling from a warehouse window is the classic illustration. Res ipsa is an evidentiary doctrine, not a fifth element and not a directed verdict for the plaintiff in most courts. It gets the plaintiff to the jury on breach when no one saw the careless act. It does not prove causation or damages.

Causation

Causation has two layers. Both must be present.

Actual (factual) cause. The default test is but-for: but for the defendant's breach, would this harm have occurred? If the plaintiff would have been injured anyway, but-for cause is missing. When two independent forces would each have been sufficient (two fires that merge; two negligent shooters), many courts use a substantial-factor test rather than a rigid but-for test. Alternative liability (Summers v. Tice) can shift the burden to two negligent defendants when the plaintiff cannot prove which one caused the injury. Do not confuse that burden-shift with a missing-element loss for the plaintiff.

Proximate (legal) cause. Even a but-for cause is not enough if the harm is outside the foreseeable risk that made the conduct negligent. Palsgraf v. Long Island Railroad Co. is the landmark. Railroad employees help a passenger board; a package of fireworks falls and explodes; scales at the far end of the platform injure Mrs. Palsgraf. Cardozo's majority: no duty to an unforeseeable plaintiff outside the zone of risk. Andrews's dissent: duty to the world, limited by proximate cause as a policy cutoff. Either framing, the exam wants foreseeability of the plaintiff and of the general type of harm. The extent of harm need not be foreseeable: the eggshell-plaintiff (thin-skull) rule says the defendant takes the plaintiff as the defendant finds the plaintiff. A tap that, because of a hidden condition, causes catastrophic injury is still a cause of that injury.

An intervening cause is a later force that contributes to the harm. It does not automatically cut off liability if it is a foreseeable kind of later event: negligent medical treatment of the original injury; a subsequent negligent driver in a chain-reaction crash; a rescue (danger invites rescue — Wagner v. International Railway Co.). A superseding cause is an intervening force so unforeseeable or extraordinary that it breaks the chain — in many fact patterns, a later criminal attack that was not among the risks that made the original conduct negligent. Label the later event before you decide whether it cuts off the original defendant. Foreseeable intervening = chain holds. Superseding = proximate cause fails.

Damages as an element

Damages are an element of the negligence claim. No harm, no negligence cause of action. A near-miss that startles the plaintiff, without physical injury, property damage, or a recognized emotional-distress theory, is not a complete case. The speeding driver who runs a red light and hits nothing may have breached a duty; the negligence claim still fails. This is the exam's favorite drop-one-element pattern.

Damages as an element (did a legally recognized injury occur at all?) is different from damages as a remedy (economic, non-economic, punitive, injunctive — section 13.4). Here the only question is whether the plaintiff suffered a compensable injury. Nominal damages that can vindicate a dignitary intentional tort do not substitute for this element in negligence.

Bystander claims and NIED

Negligent infliction of emotional distress (NIED) is tested conceptually. Many jurisdictions still require a physical impact or a later physical manifestation of the distress. Others allow a zone-of-danger plaintiff who was personally endangered and reasonably feared for his or her own safety. Bystander NIED (the Dillon v. Legg / Thing v. La Chusa line) typically requires that the plaintiff (1) is closely related to the injured victim, (2) is present at the scene and contemporaneously aware that the injury is occurring, and (3) suffers serious emotional distress beyond that of a disinterested witness. A parent who learns of a crash by telephone hours later is usually outside the bystander box. Do not treat every shocked relative as an automatic NIED plaintiff, and do not use NIED to bypass a missing physical-injury element unless the stem fits a recognized theory.

How PCCE items drop one element

The exam's signature move is a four-box checklist with one box empty.

Paralegal checklist. Before anyone calls the file "a negligence case," tick: (1) Who owed whom a duty, and on what standard — reasonable person, professional, special relationship, or premises status versus unified duty? (2) What is the untaken precaution, the statute, or the res ipsa inference? (3) But-for or substantial-factor, then foreseeability; name any later force intervening or superseding. (4) What is the legally recognized injury? If the answer is "almost, but no one was hurt," stop. (5) If the client is a relative who was not touched, run the NIED/bystander test before you plead distress.

Worked path. A grocery store leaves spilled soda on the aisle for forty minutes. A shopper — an invitee, or a lawful entrant in a unified-duty state — slips, breaks a wrist, and incurs medical bills. Duty exists (inspect and make safe). Breach is the unreasonably long delay (Hand: cheap mop versus likely, serious fall; a sanitary-floor ordinance may also support negligence per se). But-for and proximate cause are straightforward: a slip is the foreseeable risk of an unmopped spill. Damages are the fracture and the bills. If the same spill sits and the same shopper sees it, walks around it, and leaves unhurt, there is no negligence claim — damages are missing. If the shopper is a trespasser who sneaks into a locked stockroom in a traditional-status state, duty may be the missing element. If a third person later mugs the shopper in the parking lot for reasons unconnected to the spill, that later crime is a candidate superseding cause, not a reason to skip the first four-element analysis of the slip itself.