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 and Tort Law
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:
6.3 Types of Legal Liability
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