Elements of Negligence

Can you be sued if you hurt someone by accident?
Negligence is a tort that results when one person
carelessly injures another
An accidental tort but occurs often.
Examples: Can occur in car accidents, meltdown of a nuclear
power plant, or when someone slips on ice.
Elements of Negligence:
Plaintiff must prove all of the following to succeed in a tort suit
for negligence:
The defendant owed the plaintiff a duty of care.
The defendant breached that duty by being careless.
The defendant’s carelessness was the proximate cause of harm.
The plaintiff was really hurt by the defendants carelessness.
*Remember, you have to prove ALL elements.
Duty of care:
The law of torts is based on the concept of
rights. Every person has rights and we all have
a duty to not violate them.
If the plaintiffs cannot prove the defendants
owed a duty of care, the judge will throw the
Breach of Duty:
In order to determine if the certain conduct is
negligent, the law created the reasonable
person test.
– Reasonable Person Test:
 You have to be as careful as a reasonable
person would be in the situation
 A reasonable person considers how likely the
act is to cause harm, how serious the harm
would be, and the burden involved in avoiding
the harm.
Proximate Cause:
When the link between negligent conduct and
injury is strong enough to be recognized by the law.
Also called “legal cause.
The court uses the foreseeability test to determine if
proximate cause exists.
Foreseeable test:
Asks if the injury to the victim was foreseeable at the time.
If it was foreseeable, then proximate cause exists and
defendant is liable for negligence
Actual Harm:
Victim must have the following to result in negligence Suffer an injury
 Have property destroyed
 Lose a lot of money
You can defend yourself in a negligence suit by
eliminating one of the four elements:
 Could argue that you owed no duty to the
 Could claim that you were as careful as a
reasonable person would have been
 Could state that your actions did not cause the
victim’s injury
 Could try to prove that the victim was not
really injured in the way that he/she claims
Contributory Negligence- a defense against
negligence whenever the defendant can show that
the victim did something that helped cause his or
her own injuries
Comparative Negligence- a defense against
negligence which is raised when the carelessness
of each party is compared to the carelessness of
the other party
Assumption of risk- a defense against negligence that is
raised when the plaintiff knew of the risk involved and still
took the chance of being injured
Strict Liability- a legal doctrine that says that some
activities are so dangerous that liability will always follow any
injury results from those activities
Product Liability- when people are injured by defective
products, both the firm that manufactured the products and
the seller of the products are liable for injuries. Fault doesn’t
Product Liability has limits
Does not apply if the seller of defective product does not
usually sell such items.
Example: a corporation that auctions off some machinery after
one of its plants closes would not be liable for an injury caused
by a defect in one of the machines.
Survival Statues
Under common law, when an injured person died, the
right to sue also died. This means that the defendant
was better off if the plaintiff died from injuries cause
by the defendant.
Most states now have survival statues that say a lawsuit
can continue even if both the plaintiff and the
defendant die.
Wrongful Death Statues
When an injured person died, the person’s family
forfeited the right to sue the party whose negligence
caused the injury