Negligence
Negligence (unintentional tort)---the unintentional causing of harm that
could have been prevented if________.
(the defendant had acted as a
reasonable and prudent person)
 Negligence exists when four conditions
are met:
(1) D must have owed P a duty;
(2) D must have breached the duty;
(3) P must have suffered a legally
recognizable injury;
(4) The breach of duty must be the actual
and the legal cause of the plaintiff’s
injury.
2. If a plaintiff wants to win and
recover in a negligence suit,
what must he prove?
(1) The existence of duty
(2) The breach of that duty
(3) Injury to the plaintiff
(4) Causation between the
negligent conduct and the
injury

(1)
Duty
The law of negligence measures duty
by an objective, yet flexible, standard
of conduct----__________________.
(the reasonable person standard)
(2) The reasonable person standard
---- “a reasonable person of ordinary
prudence in similar circumstances”
This standard is objective because
the reasonable person is a
hypothetical person who is always
thoughtful and cautious and never
unreasonably endangers others.
Breach
A person is guilty of breach of duty if
exposes another to an unreasonable,
foreseeable risk of harm.
Cases
(1)If Wilson is carefully driving his car
within the speed limit and has a heart
attack that causes him to lose control
and crash into a car driven by Thomas, is
Wilson liable?
Wilson would ordinarily not be liable to
Thomas for his injuries. The accident is
not the result of any breach of that duty
because it was unforeseeable.

(2) If Wilson’s doctor has advised him
that he had a heart condition that
made driving dangerous and then
the above situation happens, is
Wilson liable?
His failure to heed his doctor’s
warning would probably amount to
a breach of duty because he was
plainly exposing others to
foreseeable risk of harm by driving.
Injury
(1) Statements (T or F)
____ Negligent conduct alone is
tortious.
____ Without injury, there is no
recovery.
(2)To recover damages in a
negligence case, the plaintiff must
prove there is a legally
recognizable damage, or injury to
him.

(3) If a plaintiff can prove the following
kinds of injuries such as (a) some
impact or contact with the plaintiff’s
person ,(b) some serious physical
injuries or symptoms resulted form the
plaintiff’s emotional distress or (c)
emotional harms, which one is more
easily compensated?
Courts have great reluctance to impose
liability for purely emotional harms
caused by intentional wrongs (e.g.,
Infliction of Emotional Distress).
It might be correctly assumed that an
even greater reluctance would exist
when the conduct producing an
Causation
----a close causal connection
between________ and ________
(D’s conduct / P’s injury)
Causation has two components:
________ and ________.
(cause in fact/ proximate cause)
(1) The causation in fact----actual cause
 Even if a person breaches a duty that
he owes to another person, no liability
for negligence results unless the breach

of duty was the actual cause.
 A but for test:(to determine the
existence of actual cause)
The defendant’s conduct is the actual
cause of the plaintiff’s injury if that
injury would not have occurred but for
the defendant’s breach of duty.
 Case:
On a windy day Allen negligently starts a
fire by using gasoline to start his
charcoal grill. The fire started by Allen
spreads and joins forces with another
fire started by Baker, who was burning
brush on his property but who failed
to take any precautions to prevent
the fire from spreading. The
combined fires burn Clark’s home to
the ground. Clark sues both Allen
and Baker for negligence.
ANALYSIS:
In such a case, the court would ask
whether each defendant’s conduct
was a substantial factor in bringing
about Clark’s loss. If the evidence
indicates that Clark’s house would
have been destroyed by either fire
in absence of the other, both Allen
(2)proximate cause
 The courts have recognized that a
negligent person should not necessarily
be responsible for every injury actually
caused by her negligence.
 This idea of placing some legal limit on a
negligent defendant’s liability for the
consequences of her actions is called
proximate cause. Courts often say that a
negligent defendant is liable only for the
proximate results of her conduct.
 Since the Palsgraf case, the courts have
used foreseeability as the test for
proximate cause.
(3) actual cause/ proximate cause
 Actual
cause----causation in fact
proximate cause----legal cause,
which is a question not of fact, but
of law and social policy.
 Although a defendant’s conduct may
have been the actual cause of a
particular plaintiff’s injury, she is
liable only if her conduct was also
the proximate (legal) cause of that
injury.
(4) Superseding causes
 In some cases an intervening force
occurring after a defendant’s negligence
may play a significant role in bringing
about a particular plaintiff’s injury. A
superseding intervening force may break
the connection between a wrongful act
and injury to another.
 When should an intervening force relieve
a negligent defendant from liability?
A. A high wind may spring up and this
causes a fire set by Davis to spread and
damage Parker’s property. Is Davis liable
for the damage to Parker’s property?
B. Dalton negligently starts a fire that
causes injury to several persons. The
driver of an ambulance summoned to the
scene to aid the injured has been
drinking on duty and , as a result, loses
control of his ambulance and runs up
onto a sidewalk, injuring several
pedestrians. Is Dalton responsible for the
pedestrians’ injuries?
ANALYSIS:
A. If the intervening force is a foreseeable
one, it will not relieve the defendant
from liability.
Yes. Davis is liable for the damage to
Parker’s property.
B. If the intervening force that
contributes to the plaintiff’s injury is
unforeseeable , most courts hold
that it is a superseding or
intervening cause that relieves the
defendant from any liability for
negligence.
No. Dalton is not responsible for the
pedestrians’ injuries.
 Actual
cause
/ proximate / superseding
Negligent
conduct
actual cause
Negligent
conduct
Proximate cause
Foreseeablility
Negligent Intervening force
conduct Superseding cause
(foreseeablility)
Injuries
(A+B+C)
Injuries
(A+B)
Injuries
6. Defenses to negligence:
(1) Stevens voluntarily goes for a
ride in Markley’s car , even though
Markley has told him that her
brakes are not working properly.
Could Stevens ask for damages if
there is an accident?
 assumption of risk: Stevens has
voluntarily assumed the risk of
injury as a result of the car’s
defective brakes.
(2) If Parker steps into the path of
Steven’s speeding car without first
checking to see whether any cars
are coming, could Parker ask for
any recovery against Stevens?
• The doctrine of contributory
negligence provides that plaintiffs
who fail to exercise reasonable care
for their own safety are totally
barred from any recovery if their
contributory negligence is a
substantial factor in producing their
injury.
(3) Durban pulls into the path of Preston’s
speeding car without looking, causing an
accident. When Preston files suit to
recover for the damage, Durban argues
that the fact that Preston was speeding
amounts to contributory negligence. If
Preston can convince the court that the
accident could have been avoided if
Durban had looked before puling onto
the highway, she has a good chance of
overcoming Durban’s contributory
negligence defense.
A
contributorily negligence plaintiff
may be able to overcome an valid
contributory negligence defense by
arguing that the defendant had the
last clear chance to avoid harm. The
doctrine of last clear chance focused
on who is last at fault in time.
(4)Dunne negligently injuries Porter and
Porter suffers $10,000 in damages. A
jury, however, determines that Porter
was 20 percent at fault. Porter could
recover only $8,000 from Dunne.
But what if Porter is determined to be
60% at fault?
 Under a comparative negligence system,
courts seek to determine the relative
fault of the parties to a negligence action
and award damages in proportion to the
degree of fault determined.
But what if Porter is determined to be
60% at fault?
The results vary depending on whether
the state has adopted a pure or a
mixed comparative fault system.
(1) Under a pure comparative fault system,
plaintiff are allowed to recover a portion
of their damages even if they are more
at fault than the defendant.
(2) Under a mixed system, plaintiff who are
as much at fault as, or more at fault
than, the defendant are denied any
recovery.

Case analysis:
1. What are the main points in Judge
Cardozo’s reasoning against the
plaintiff?
(1) The guard’s act, even if it was a wrong,
was not one intended against the
plaintiff. (2) Different kinds of interest
were involved in the “wrongful” act of
the guard and the claim of the plaintiff:
the guard’s act, even if it were
considered wrong, was a tort of
invasion of a property right. The
plaintiff was suing because of her bodily
injury. (3) There was no foreseeable
probability to the eye of reasonable
vigilance that the parcel would threaten
the safety of the plaintiff. So the guard’s
act was not a wrong to the plaintiff.
2. What is the main difference between
Judge Cardozo’ reasoning and Judge
Andrews’ reasoning of this case?
The two judges differ on the question
whether the guard ea negligent to the
plaintiff.
(1) To Judge Cardozo, negligence is a
relative concept. Defendant owes the
duty of care only to persons who may be
injured by his wrongful act in the
judgment of a reasonable man. In
this case, the act of the guard, even
if it is deemed a wrong, could only
be a wrong to the owner of the
package. The package looked
harmless. The plaintiff was some
distance away. The guard could not
reasonably foresee that his action
would endanger the plaintiff. So he
did not owe the plaintiff the duty of
care, and there was no tort
committed against the plaintiff.
discuss proximate cause.
(2) To Judge Andrews, the negligent
person owes the duty of care not only to
those who may be endangered in the
judgment of the reasonable man, but
also to persons actually injured, because
a duty of care is imposed on each
member of society. After establishing
that the defendant in this case did owe
the plaintiff the duty of care, Judge
Andrews discussed about the
consequences of the guard’s beach of
that duty, and concluded that all
elements of proximate cause were
present in this case.
3. How did Judge Andrews explain the
concept of proximate cause?
To Judge Andrews, proximate cause is
the boundary arbitrarily drawn by the
court to limit liability for a wrong which
results in a chain of injuries. There is no
fixed rule for determining whether an
injury is proximately caused by a wrong.
The judge has to make a rule in each
case. The only guide is common sense.
However, certain factors are helpful in
determining proximate cause. One is
that the injury must have been caused
by the wrong. The second is that there
should not be too much distance either
in time or space between the wrong and
the injury.
4. Both judges approached the question
from the theory of negligence. Is there
any other theory of liability under which
the railroad company would be held
liable to the plaintiff?
Yes. Under the theory of strict liability,
the railroad company would be held
liable even without fault to the
passengers for injuries to their person.