6.2 Negligence and Tort Law
Key Takeaways
- Negligence requires proving FOUR elements — Duty, Breach, Causation (proximate cause), and Damages — and all four must be present.
- Pure contributory negligence bars ALL recovery if the plaintiff is even 1% at fault; in 2026 only 5 jurisdictions use it: Alabama, Maryland, North Carolina, Virginia, and Washington D.C.
- Comparative negligence reduces recovery by the plaintiff's fault percentage — pure (recover at any fault) or modified (barred at the 50% or 51% threshold).
- Assumption of risk bars recovery when the plaintiff knew of, appreciated, and voluntarily accepted a specific danger.
- Res ipsa loquitur lets a plaintiff infer negligence from circumstances; negligence per se makes a statutory violation an automatic breach of duty.
What Is Negligence?
Negligence is the failure to exercise the degree of care a reasonably prudent person would use under similar circumstances. It is unintentional — carelessness, not deliberate harm. Because almost every liability claim turns on negligence, the four elements below are among the most tested items on the entire exam.
The Four Elements (Memory Aid: DBCD)
Duty -> Breach -> Causation -> Damages. The plaintiff must prove ALL four.
1. Duty of Care
A legal obligation to meet a standard of conduct. Duty arises from a relationship (driver–pedestrian), the foreseeability of harm, or a statute (traffic laws, building codes).
2. Breach of Duty
Failing to meet the standard — speeding in a school zone, not salting an icy walk, texting while driving.
3. Proximate (Legal) Cause
The breach must be the direct cause. Two parts: cause in fact (the "but-for" test — but for the breach the injury would not have occurred) and legal cause (the harm was a foreseeable consequence). An unforeseeable, intervening event can break the chain of causation.
4. Damages
Actual, measurable harm — bodily injury, property damage, economic loss. No damages, no claim, even if a duty was breached.
Special Negligence Doctrines
| Doctrine | Meaning | Classic Example |
|---|---|---|
| Res ipsa loquitur | "The thing speaks for itself" — negligence inferred from circumstances | Surgical sponge left inside a patient |
| Negligence per se | Violating a safety statute = automatic breach | Driver runs a red light and hits a pedestrian |
Res ipsa loquitur shifts the burden when (1) the event does not normally occur absent negligence, (2) the instrumentality was in the defendant's exclusive control, and (3) the plaintiff did not contribute.
Defenses That Shift or Reduce Liability
Contributory Negligence (the harsh rule)
If the plaintiff is even 1% at fault, recovery is $0. As of 2026, only five jurisdictions apply pure contributory negligence: Alabama, Maryland, North Carolina, Virginia, and Washington D.C. Limited escape hatches exist (the last clear chance doctrine in MD and VA, and gross/willful misconduct by the defendant).
Example: A jaywalker hit by a speeder is found 5% at fault. In a contributory state, the jaywalker recovers nothing.
Comparative Negligence (the majority rule)
Recovery is reduced by the plaintiff's fault percentage.
| System | Recovery Rule | Approx. # States |
|---|---|---|
| Pure comparative | Recover even at 99% fault, reduced by % | ~13 |
| Modified — 50% bar | Recover only if 50% or LESS at fault | ~10 |
| Modified — 51% bar | Recover only if 50% or LESS, barred at 51% | ~23 |
Worked example (pure): $100,000 damages, plaintiff 90% at fault -> recovers $10,000.
Worked example (51% bar): $100,000 damages, plaintiff 51% at fault -> recovers $0; at 50% they would recover $50,000.
Assumption of Risk
Bars recovery when the plaintiff knew of a specific danger, appreciated its nature, and voluntarily exposed themselves — e.g., a spectator struck by a foul ball, or a skier injured on the slopes.
Damages in Negligence
- Special (economic): medical bills, lost wages, property repair.
- General (non-economic): pain and suffering, emotional distress, loss of consortium.
- Punitive: awarded for gross negligence or willful misconduct; often uninsurable by state law.
The Reasonable Person Standard
The yardstick for both duty and breach is the reasonably prudent person — an objective, hypothetical individual of ordinary caution. The standard adjusts in two recurring exam situations. Professionals (doctors, attorneys, agents) are held to the higher standard of a reasonable member of their profession, which is why malpractice and E&O exist. Children are generally judged against a reasonable child of similar age, intelligence, and experience — unless the child is engaged in an adult activity such as driving, in which case the adult standard applies.
Mental capacity usually does not lower the standard for adults: a defendant who simply was not careful enough is liable even if they tried their best.
Causation: The Two-Part Test in Practice
Proximate cause trips up many candidates, so work it as two questions. First, the cause-in-fact ("but-for") test: would the injury have happened but for the defendant's act? If the harm would have occurred anyway, causation fails. Second, the legal cause test: was the harm a foreseeable result of the breach, with no superseding intervening event breaking the chain? A classic trap: a driver negligently parks, and an hour later an unrelated tornado throws the car through a window. The negligent parking is a cause-in-fact, but the tornado is an unforeseeable superseding cause, defeating proximate cause.
Expect the exam to test the difference between an intervening cause (foreseeable, does not break the chain) and a superseding cause (unforeseeable, breaks the chain).
Choosing the Right Defense
The correct defense depends on the jurisdiction's fault rule, so read scenario questions for the state setting:
- In a contributory jurisdiction, even slight plaintiff fault is a complete defense — the strongest position for a defendant.
- In a comparative jurisdiction, the defense reduces but rarely eliminates recovery, except in modified states where crossing the 50% or 51% threshold bars the plaintiff entirely.
- Assumption of risk is a separate, complete defense regardless of the comparative system, because it shows the plaintiff consented to the danger.
- The last clear chance doctrine is a counter-defense: it lets a contributorily negligent plaintiff still recover if the defendant had the final opportunity to avoid the harm and failed to take it.
Bottom line for the exam: know DBCD cold, recognize the five contributory jurisdictions, distinguish intervening from superseding causes, and be able to compute a comparative-fault recovery quickly.
Which list correctly states the four elements of negligence?
A plaintiff with $100,000 in damages is found 51% at fault in a modified comparative negligence state using the 51% bar. The plaintiff recovers:
A surgical sponge is discovered inside a patient after an operation. The doctrine that lets the patient infer negligence from these circumstances is:
In 2026, which group lists jurisdictions that still apply pure contributory negligence?