6.2 Negligence and Tort Law
Key Takeaways
- Negligence requires proving FOUR elements: Duty, Breach, Causation (proximate cause), and Damages — all four must be present
- Contributory negligence (pure bar) prevents ANY recovery if the plaintiff is even 1% at fault — only used in 4 states + DC
- Comparative negligence reduces recovery by plaintiff's percentage of fault — either pure (any fault) or modified (50% or 51% bar)
- Assumption of risk is a defense when the plaintiff knowingly and voluntarily exposed themselves to a known danger
- Damages include compensatory (special + general), which make the plaintiff whole, and punitive, which punish egregious behavior
Negligence is the foundation of most liability claims. Understanding how negligence works is essential for the P&C exam.
What Is Negligence?
Definition: The failure to exercise the degree of care that a reasonably prudent person would exercise under similar circumstances.
Key Concept: Negligence is unintentional wrongdoing. It's carelessness, not deliberate harm.
The Four Elements of Negligence
A plaintiff must prove ALL FOUR elements to establish negligence:
1. Duty of Care
Definition: A legal obligation to conform to a standard of conduct.
How Duty Is Established:
- Relationship between parties (doctor-patient, driver-pedestrian)
- Foreseeability of harm
- Statutory duty (traffic laws, building codes)
Standard: What would a reasonably prudent person do?
2. Breach of Duty
Definition: Failure to meet the applicable standard of care.
Examples of Breach:
- Speeding through a school zone
- Not shoveling icy sidewalk
- Failing to inspect equipment
- Texting while driving
3. Proximate Cause
Definition: The breach must be the direct cause of the injury.
Two Components:
- Cause in fact: "But for" the breach, injury wouldn't have occurred
- Legal cause: Injury was foreseeable consequence of the breach
Example: Driver runs red light → hits pedestrian → pedestrian injured
- Cause in fact: But for running the light, no collision
- Legal cause: Injury was foreseeable
4. Damages
Definition: The plaintiff must have suffered actual harm.
Types of Damages:
- Physical injury
- Property damage
- Economic loss
- Pain and suffering
No Damages = No Negligence Claim Even if duty was breached, no lawsuit without actual harm.
The Memory Aid: DBCD
Duty → Breach → Causation → Damages
All four must be proven for a successful negligence claim.
Types of Damages in Negligence
Compensatory Damages
Purpose: Make the plaintiff "whole" again.
| Type | What It Covers | Examples |
|---|---|---|
| Special Damages | Economic/pecuniary losses | Medical bills, lost wages, property repair |
| General Damages | Non-economic losses | Pain and suffering, emotional distress, loss of consortium |
Punitive Damages
Purpose: Punish defendant for egregious conduct and deter others.
When Awarded:
- Gross negligence
- Willful misconduct
- Reckless disregard for safety
- Malicious intent
Insurance Coverage: Often NOT covered (against public policy in many states).
Defenses to Negligence
1. Contributory Negligence
Rule: If the plaintiff is even 1% at fault, they recover NOTHING.
Status: Only 4 states + DC still use this:
- Alabama
- Maryland
- North Carolina
- Virginia
- District of Columbia
Example: Jaywalker hit by speeding car. Jaywalker is 5% at fault. In contributory negligence state: Jaywalker recovers $0.
2. Comparative Negligence
Rule: Plaintiff's recovery is reduced by their percentage of fault.
Pure Comparative Negligence
- Plaintiff recovers even if mostly at fault
- Recovery reduced by fault percentage
Example: Plaintiff 90% at fault, $100,000 damages → Recovers $10,000
States: California, New York, Florida, and ~10 others
Modified Comparative Negligence
50% Bar Rule: Plaintiff recovers only if 50% or less at fault. 51% Bar Rule: Plaintiff recovers only if 49% or less at fault.
Example (51% Bar): Plaintiff 51% at fault → Recovers $0
States: Most states use modified comparative negligence.
3. Assumption of Risk
Rule: Plaintiff knowingly and voluntarily exposed themselves to a known danger.
Requirements:
- Plaintiff knew of the risk
- Plaintiff appreciated the risk's nature and extent
- Plaintiff voluntarily exposed themselves
Examples:
- Attending a baseball game (foul balls)
- Skydiving
- Skiing
- Contact sports
Comparative Negligence Map
| System | Recovery Rule | Approximate States |
|---|---|---|
| Contributory | 0% if any fault | 4 + DC |
| Pure Comparative | Recover even if mostly at fault | ~13 states |
| Modified 50% | Recover if ≤50% at fault | ~10 states |
| Modified 51% | Recover if <50% at fault | ~23 states |
Special Negligence Doctrines
Res Ipsa Loquitur
"The thing speaks for itself"
When circumstances imply negligence without direct evidence:
- Event doesn't normally occur without negligence
- Defendant had exclusive control
- Plaintiff didn't contribute
Example: Surgical sponge left inside patient.
Negligence Per Se
Violation of statute = automatic breach of duty
If defendant violated a safety statute designed to protect people like plaintiff, breach is automatic.
Example: Driver runs red light and hits pedestrian. Traffic law violation = automatic breach.
The four elements of negligence are:
In a pure contributory negligence state, if a plaintiff is 5% at fault for their $100,000 in damages, they will recover:
Assumption of risk applies when the plaintiff: