An Explanation of The Five Elements of Negligence
ALL FIVE ELEMENTS MUST BE PRESENT FOR NEGLIGENCE TO BE PROVED
I.DUTY- (First Element)—Is this an individual that foreseeably could be injured by my failure to use
reasonable care? (Is the injured person in the zone of danger created by the negligence?)
Examples of Duty v. No Duty
Example 1
A defendant was loading bags of grain on a truck and hit a child with a bag. The first question is
whether the defendant owed a duty to the child? If the loading dock was near a sidewalk, and
child was struck while walking by, likely find defendant owed a duty to child. Alternatively-- if
child was trespassing on private property and the defendant didn't know that the child
was there, not likely to find that the defendant owed a duty (not foreseeable child will
trespass).
Example 2
A driver of a minibus did not turn for his shift. The minibus was stolen, and thieves proceeded to assault
a woman by knocking her off her bicycle (she subsequently died from her injuries). Did the bus company
owe a duty of care to the woman? No duty likely owed by bus company to woman because not
foreseeably to be injured by stolen truck that is used to assault someone
Example 3
Business owners (Ingles in Sylva) would have a duty to take reasonable care to ensure their
premises are safe for their customers and employees. The duty can include regularly inspecting
their property for hazardous conditions and fix it within a reasonable timeframe. Ingles in Sylva
does not have a duty to someone living in England because that person is not someone who
could be foreseeably injured by Ingle not keeping the premises safe
Example 4
I am your attorney and lose your lawsuit because I was negligen in not timely filing the law for
you as my client. I do not owe a duty to the defendant who is excused from the case because
my negligence in not timely file would not foreseeably injure him. Or her You could
2. (Second Element) BREACH OF THE DUTY OF CARE or CAN SAY THE PERSON WAS
NEGLIGENT (Did the person fail to use reasonable care under the circumstances given his
occupation or the activity engaged in?)
You always asked--Did this person fail to exercise reasonable care under the circumstances?
What would the reasonable driver have done?
What would the reasonable lawyer have done?
What would the reasonable doctor have done?
3. Actual Cause (Third Element)—Always determined by asking, "But For This Person's
negligence, would the injury to the person or property have occurred?
Actual cause, also known as "cause in fact," is straightforward. When a bus strikes a car, the
bus driver's actions are the actual cause of the accident. Or
Example of But For Causation
A car accident--But for the driver running the red light, the collision would not have occurred.).
Remember—the negligent person is not liable if the negligent act caused no injury (example:
negligently throw still lit cigarette in a classroom trash can and the building burns down—but the
building burning was caused by a short in the electrical wiring and not the cigareete). Neither is the
negligent individual liable for all injuries caused simply because there is “but for” causation)(See
element 4).
4. Proximate Cause (Fourth Element)—A person who is negligent is not responsible simply by
finding "But For" or "Actual Cause of all–There must be Proximate cause as well
Think of Proximate Cause in terms of the following: "Is this kind of injury the kind that
foreseeably could occur based on my negligent act or another way of thinking of it is what were
the particular risks that made my conduct negligent?"
Examples of No Proximate Cause even though there is Actual Cause.
Example 1
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A father gives his child a loaded gun, which she carelessly drops upon the neighbor's foot,
causing injury. The plaintiff argues that it is negligent to give a child a loaded gun and that
negligence caused the injury, but this argument fails, for the injury did not result from the risk
that made the conduct negligent. The risk that made the conduct negligent was the child
accidentally firing the gun; the harm suffered could just as easily have resulted from handing the
child an unloaded gun
Example 2
A restaurant owner stores rat poison above the chef’s grill in the kitchen of his luncheonette. The
can of rat poison is mixed in with cans and bottles of spices and looks similar. During the lunch
rush, the can explodes, severely injuring the chef preparing food in the kitchen. The chef sues
the owner for negligence.
No proximate cause--The chef may not recover because no proximate cause—explosion of
the can be not the foreseeable injury to occur if store rat poison in the kitchen above the counter.
Example 3 (Here is Proximate Cause).
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Proximate Cause Will Be Present If—Chef is injured because he mistakenly believes the can
stored in a cooking area is spice—not rat poison. Storing rat poison above the grill was negligent
because the risk of injury to the chef might inadvertently mistake it for spice and use it as an
ingredient in a recipe. The explosion of the container and subsequent damage to the chef was
not what made the chosen storage space risky.
5. Injury (Fifth Element)—Can be an economic injury, physical injury, or injury to one’s
emotions (negligent infliction of emotional distress in some states requires no contact with the
person who suffers emotional distress).