6.3: Negligence

LEARNING OBJECTIVES

1. Understand how the duty of due care relates to negligence.
2. Distinguish between actual and proximate cause.
3. Explain the primary defenses to a claim of negligence.

Elements of Negligence

Introduction

Negligence is the most common tort in modern law. Unlike intentional torts, negligence arises from careless conduct that results in foreseeable harm to another. The essence of negligence is the failure to act as a reasonably prudent person would under the circumstances.

Consider the following scenario:

Scenario:
David and his girlfriend, Mary, are on their way to Napa, California, for a day of wine tasting. While driving along Interstate 80, Mary insists David watch a TikTok video she recently posted. David glances down at her phone and takes his eyes off the road. In that brief moment, David’s car veers and strikes Sarah, who is lawfully crossing at a pedestrian overpass area. Sarah is severely injured.

Emergency responders place Sarah in an ambulance for transport to the nearest hospital. At an intersection, Kevin—whose own car had faulty brakes he had neglected for years due to financial struggles—fails to stop and collides with the ambulance carrying Sarah. Sarah dies from the injuries sustained in this second collision.

This tragic sequence highlights how negligence is analyzed through the four elements: duty, breach, causation, and damages.

Elements of Negligence

A plaintiff must establish four elements:

1. Duty of Care – The defendant owed a legal obligation to act reasonably.
2. Breach of Duty – The defendant failed to meet that standard of care.
3. Causation – The defendant’s breach actually and proximately caused the harm.
4. Damages – The plaintiff suffered legally recognizable loss.

Duty of Care

In negligence law, the first question is whether the defendant owed the plaintiff a duty of care. Duty refers to the legal obligation to act reasonably toward others to avoid causing foreseeable harm. Courts apply the standard of the reasonable person under the same or similar circumstances—an objective measure that does not vary based on an individual’s personal abilities, intentions, or financial struggles.

Application to the Napa Scenario

David owed a duty to everyone on the road—including Sarah, the pedestrian—to drive attentively, obey traffic signals, and properly maintain his vehicle. This duty existed regardless of his financial hardship in replacing the car’s brakes. Similarly, Kevin owed a duty to yield to the ambulance, particularly when its lights and sirens clearly signaled an emergency. Both drivers were legally bound to act as reasonable drivers under the circumstances.

Heightened Duties

In some relationships, the law imposes a higher duty of care due to the risks involved or the trust placed in the defendant:

• Common carriers (e.g., bus drivers, airline pilots) are held to a heightened duty because passengers entrust their safety entirely to them.
  • Example: A city bus driver who texts while driving through traffic breaches a heightened duty because passengers depend completely on the driver’s caution.
• Caregivers and professionals (e.g., daycare providers, doctors, accountants, attorneys) are judged against the knowledge, skill, and care of their profession rather than an ordinary person.
  • Example: A daycare provider who leaves children unsupervised on a playground has likely breached their heightened duty if a child is injured.
• Special guides or instructors may also be held to heightened standards.
  • Example: A professional rock climber taking beginners on a trip must ensure proper safety gear and instruction, given the extreme risks involved.

Landowners and Business Invitees

Landowners also owe duties to those who enter their property:

• Business Invitees (customers, clients, or others entering for the financial benefit of the owner) receive the highest protection. Landowners must inspect, warn, and make safe by correcting or warning of hazards they know or should have discovered through reasonable inspection.
  • Example: A grocery store that fails to clean up or warn of a spilled liquid in an aisle breaches its duty if a customer slips and falls.
• Licensees (social guests) and trespassers may be owed less, but owners still must avoid willful or wanton harm and, in some jurisdictions, warn of known hidden dangers.

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Breach of the Duty of Care

Once a duty of care has been established, the next question is whether the defendant’s conduct fell below the required standard of care. A breach occurs when a person or business fails to act as a reasonably prudent person would under the same or similar circumstances. The inquiry often turns on whether the defendant’s actions—or failure to act—created an unreasonable risk of harm that could have been avoided with ordinary caution.

Because circumstances vary widely, breach is often a question of fact for the jury, rather than a pure question of law. Jurors are asked to weigh what a reasonably careful person would have done under the same situation.

Application to the Napa Scenario

• David: By taking his eyes off the road to watch Mary’s TikTok video while driving, David failed to act as a reasonably prudent driver. Distracted driving is a clear breach because it creates foreseeable risks of harm to pedestrians, passengers, and other drivers.
• Kevin: Kevin knowingly operated his car with faulty brakes, which he had neglected to replace for years. Driving a vehicle in such a dangerous condition falls far below the standard of care expected of reasonable drivers. His defective brakes directly contributed to the catastrophic ambulance collision that killed Sarah.

Both drivers’ conduct reflects a failure to use basic, ordinary caution. Their breaches were not unusual accidents but the result of avoidable, careless decisions.

Breach in Professional or Business Contexts

For professionals and businesses, breach is measured against the standards of the industry or profession, rather than ordinary personal judgment. Ignoring known hazards, failing to follow protocols, or disregarding widely accepted safety practices are strong indicators of breach.

• Example: A grocery store employee notices a spill in an aisle but chooses to finish restocking shelves instead of cleaning it up or posting a warning sign. If a customer slips and is injured, the store has likely breached its duty because a prudent business would have taken immediate steps to minimize the risk.

Key Point

Establishing breach requires showing that the defendant’s conduct fell short of what a reasonable person—or, in some cases, a reasonable professional—would have done under the same circumstances. The more foreseeable the risk, the stronger the case for breach.

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Causation: Actual Cause and Proximate Cause

Even if a duty of care exists and a breach has occurred, a negligence claim requires proof that the defendant’s conduct caused the plaintiff’s injury. Causation has two distinct components: actual causation and proximate causation.

Actual Causation (Cause in Fact)

Actual causation asks whether the harm would have occurred “but for” the defendant’s conduct. If the injury would not have happened without the defendant’s actions, then actual causation is satisfied. Courts may also apply the substantial factor test in cases where multiple causes combine to produce harm.

• Scenario Application:
  • But for David’s distraction while watching Mary’s TikTok video, Sarah would not have been struck as a pedestrian.
  • But for Kevin’s failure to maintain his brakes, Sarah would not have died in the subsequent ambulance collision.

Both acts were actual causes of Sarah’s injuries and eventual death.

Proximate Causation (Legal Cause)

Proximate cause limits liability to those harms that are reasonably foreseeable consequences of the defendant’s actions. Even if actual causation is shown, the law does not hold defendants liable for every ripple effect of their conduct. Courts apply the foreseeability test: Was the type of harm that occurred a foreseeable result of the defendant’s negligence?

• Scenario Application:
  • It is foreseeable that distracted driving could cause a collision with a pedestrian.
  • It is foreseeable that driving with faulty brakes could result in a catastrophic crash, even with an emergency vehicle.
  • By contrast, if Sarah had died because a bolt of lightning struck the ambulance during transport, that result would not be foreseeable and would break the chain of causation.

Case Illustration: Palsgraf v. Long Island Railroad Co. (1928)

Facts:
Mrs. Palsgraf was standing on a train platform owned by the Long Island Railroad. A man carrying a small package tried to board a moving train. Railroad guards attempted to help him on—one pulling him up, another pushing from behind. In the process, the man dropped the package, which contained fireworks. The fireworks exploded, causing a large shockwave. At the far end of the platform, the blast knocked over a set of scales, which fell and injured Mrs. Palsgraf.

Issue:
Could the railroad be held liable for Mrs. Palsgraf’s injuries, even though she was far removed from the immediate accident?

Holding:
The New York Court of Appeals, in an opinion by Judge Cardozo, held that the railroad was not liable. Although the guards’ conduct was arguably negligent toward the man with the package, it was not negligent toward Mrs. Palsgraf because her injury was not a reasonably foreseeable consequence of helping a passenger board a train.

Reasoning:
Cardozo emphasized that negligence is relational: it is a duty owed to those within the zone of foreseeable danger. Since the guards could not reasonably foresee that helping a man with a small package would cause scales to fall and injure a distant bystander, proximate cause was not satisfied.

Significance:
Palsgraf is the classic case on proximate cause, teaching that negligence liability is not limitless. Even if a breach sets off a chain of events, courts draw boundaries at injuries that are too remote or unforeseeable.

Key Point

• Actual Cause: Proven by the “but for” test—would the harm have occurred without the defendant’s negligence?
• Proximate Cause: Proven by the foreseeability test—was the type of harm a reasonably foreseeable result of the negligence?

Together, actual and proximate causation ensure that defendants are held liable only for harms both factually caused by their actions and reasonably foreseeable.

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Damages

The final element of negligence is proof of actual damages. Even if duty, breach, and causation are established, a plaintiff cannot recover without demonstrating a legally recognized injury. Damages provide the link between the defendant’s wrongful conduct and the plaintiff’s loss, ensuring that the legal system compensates only for real harm rather than hypothetical or speculative injuries.

Types of Damages in Negligence

1. Compensatory Damages
   • Designed to make the plaintiff “whole.”
   • Includes both economic losses (medical expenses, lost wages, property damage) and noneconomic losses (pain and suffering, emotional distress, loss of consortium).
   • Example from Scenario: Sarah’s estate could recover for her medical bills, ambulance costs, lost earnings, and the pain and suffering she endured before death. Her family might also claim wrongful death damages for lost financial support and companionship.
2. Punitive Damages
   • Awarded rarely in negligence cases, only when conduct rises to the level of willful, malicious, or reckless disregard for safety.
   • Intended not to compensate the plaintiff but to punish the defendant and deter similar misconduct.
   • Example: If it were shown that Kevin knowingly disabled his car’s brake warning system to avoid costly repairs, a court might consider punitive damages because such conduct shows reckless indifference to human life.
3. Nominal Damages
   • A token amount awarded when a legal wrong occurred but no substantial loss can be proven.
   • Rare in negligence, since actual injury is usually required, but possible where breach is clear yet harm is absent.
   • Scenario: A driver, while backing out of a parking space, carelessly brushes against a pedestrian’s jacket. The pedestrian is startled but suffers no physical injury, no medical costs, and no financial loss. A court might award nominal damages (such as $1) to recognize that a legal wrong occurred, even though no compensable injury resulted.

Why Damages Matter

Negligence law is not about punishing careless conduct in the abstract—it is about compensating victims for harm suffered. Without damages, a negligence claim fails, even if the defendant clearly breached a duty.

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The Plaintiff's Proof and Presumptions in Negligence

In negligence cases, the plaintiff bears the burden of proof. This means the plaintiff must establish that:

1. The defendant engaged in the conduct alleged to be negligent.
2. The circumstances made that conduct unreasonable.
3. The defendant’s breach caused the plaintiff’s injury.
4. The injury resulted in legally recognizable damages.

These issues are generally resolved by a jury, which evaluates the facts and determines whether the defendant’s conduct fell below the standard of care.

Direct vs. Circumstantial Evidence

Direct proof—such as eyewitness testimony or video footage—is ideal but not always available. Frequently, plaintiffs must rely on circumstantial evidence (indirect evidence from which negligence can be inferred). Circumstantial evidence can be highly persuasive: muddy footprints leaving a building may show that someone was inside, even if no one saw them enter.

The Doctrine of Res Ipsa Loquitur

Because direct proof is often difficult to obtain, courts recognize the doctrine of res ipsa loquitur (“the thing speaks for itself”). This doctrine allows a jury to infer negligence from the mere occurrence of certain types of accidents, shifting the burden to the defendant to prove that they exercised due care.

The classic requirements for res ipsa loquitur are:

1. The type of accident ordinarily does not occur without negligence.
2. The instrumentality that caused the harm was under the defendant’s exclusive control.
3. The plaintiff did not contribute to the accident.

• Case Example: Scott v. London & St. Katherine Docks Co. (1865)
  A worker was struck by falling bags of sugar from a warehouse. The court held that such an accident ordinarily would not happen without negligence. Since the bags were under the control of the defendant, and the plaintiff did nothing to cause the accident, the jury could infer negligence.

• Medical Example: A patient undergoes routine surgery and awakens with a severe burn on her arm. Because she was unconscious, she cannot explain what happened. Since surgical burns do not normally occur without negligence, and the patient contributed nothing, res ipsa loquitur permits the court to infer negligence by the hospital staff unless they provide a credible explanation.

Application to the Napa Scenario

Suppose Sarah’s ambulance crashed because one of its wheels suddenly detached during transport. Sarah’s estate might invoke res ipsa loquitur to argue negligence against the ambulance company because:

1. Ambulance wheels do not ordinarily come off without poor maintenance.
2. The ambulance and its equipment were under the company’s control.
3. Sarah, as a patient, did not contribute to the harm.

In this situation, the burden would shift to the ambulance company to show that the wheel came off due to an unforeseeable event (e.g., sabotage or a latent defect in the part) rather than negligence.

Key Point

Because negligence often occurs in private or technical circumstances beyond the plaintiff’s knowledge, doctrines like res ipsa loquitur prevent injustice by allowing juries to infer fault where the facts strongly suggest negligence. Still, the plaintiff always carries the initial burden of producing enough evidence to show that negligence is the most reasonable explanation for the harm.

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Defenses to Negligence

Even if a plaintiff successfully proves all four elements of negligence—duty, breach, causation, and damages—the defendant may still avoid or reduce liability through one of several defenses. These defenses are designed to balance fairness: the law does not want to impose liability where the plaintiff also contributed to the harm, knowingly assumed the risk, or where a natural event—not the defendant—was the true cause of injury.

Superseding Cause and Intervening Act

Even when a plaintiff proves duty, breach, causation, and damages, a defendant may avoid liability if an intervening act breaks the chain of causation. Courts distinguish between intervening acts (foreseeable events that do not relieve the original defendant of liability) and superseding causes (extraordinary, unforeseeable events that cut off liability).

The key inquiry is foreseeability:

• If the subsequent act was reasonably foreseeable, the original defendant remains liable, often alongside the second wrongdoer.
• If the subsequent act was highly unusual or extraordinary, it is deemed a superseding cause, severing the causal link.

Intervening Act

An intervening act is one that occurs after the defendant’s negligent conduct but is sufficiently foreseeable that liability continues.

• Scenario Application:
  • David struck Sarah while distracted by Mary’s TikTok video.
  • Kevin then crashed into the ambulance carrying Sarah because his brakes were faulty.
  • Kevin’s negligence was an intervening act, but not unforeseeable. Collisions involving inattentive or poorly maintained drivers are foreseeable risks when someone is injured and transported by ambulance. Thus, David may remain liable for Sarah’s death alongside Kevin.

Superseding Cause

A superseding cause is an intervening act so extraordinary or unforeseeable that it breaks the chain of causation, relieving the original defendant of liability.

• Scenario Application:
  • Suppose instead that, while Sarah was in the ambulance, a freak earthquake caused a light pole to fall directly onto the ambulance, killing her.
  • This event is extraordinary and unrelated to the risks created by David’s distraction. The earthquake would be considered a superseding cause, cutting off David’s liability for Sarah’s death (though he would still be liable for her initial injuries).

Key Point

• Intervening Act: A later event that is foreseeable (e.g., Kevin’s faulty brakes) → liability continues.
• Superseding Cause: A later event that is extraordinary and unforeseeable (e.g., earthquake crushing the ambulance) → liability cut off.

By distinguishing between intervening and superseding events, courts ensure that defendants are not unfairly held responsible for consequences that extend far beyond the foreseeable risks of their actions.

Contributory and Comparative Negligence

Historically, under the old contributory negligence rule, if the plaintiff was even 1% at fault, recovery was completely barred. For example, if Sarah had been only slightly negligent in contributing to the accident on I-80, she would have recovered nothing, no matter how reckless Kevin had been. Because this rule was so harsh, most states—including California—have replaced it with comparative negligence systems.

It is important to remember that, just like any negligence claim, the plaintiff must first prove all four elements of negligence against the defendant:

1. Duty – Kevin owed Sarah and other drivers a duty to drive safely.
2. Breach – Kevin breached that duty by being distracted by Mary’s TikTok and by failing to maintain his brakes.
3. Causation – Kevin’s breach was both the factual and proximate cause of Sarah’s injuries.
4. Damages – Sarah suffered serious harm, ultimately resulting in her death.

Only after the plaintiff has met this burden does contributory or comparative negligence come into play to determine whether, and to what extent, recovery is reduced.

Pure Comparative Negligence (California’s Rule)

In California, a plaintiff can recover damages even if they are mostly at fault. Recovery is simply reduced by their percentage of fault.

• Example: If Sarah’s estate proves $1,000,000 in damages, but the jury finds her 30% at fault (for speeding), she would still recover $700,000 from Kevin.

Modified Comparative Negligence (Majority of States)

In many states, a plaintiff can only recover if they are less than 50% (or in some states, 51%) at fault. If their share of fault meets or exceeds that threshold, recovery is barred entirely.

Assumption of Risk

Risk of injury is a part of everyday life, but the law does not allow plaintiffs to recover simply because they encountered a risk and suffered harm. When a person knowingly and voluntarily accepts a risk, the law may bar recovery through the defense of assumption of risk. In such cases, the plaintiff must bear the consequences of their choice.

Types of Assumption of Risk

1. Express Agreement – The plaintiff formally agrees to waive liability before entering a risky situation.
   • Example: “You can borrow my car if you agree not to sue me if the brakes fail, because they’re worn and I haven’t had a chance to replace them.”
2. Implied by Relationship – The plaintiff voluntarily participates in an activity where certain risks are obvious and inherent.
   • Example: A baseball fan struck by a foul ball at a game generally cannot sue, as attending carries the known risk of foul balls.
3. Implied by Conduct – The plaintiff knowingly proceeds in the face of a known danger created by the defendant’s negligence.
   • Example: A passenger who gets into a car with a driver she knows is intoxicated may be found to have assumed the risk of an accident.

Subjective vs. Objective Knowledge

A key question is whether the plaintiff actually knew of the risk (subjective test) or whether they should have known under an objective community standard. Courts may hold that risks that are obvious to a reasonable person cannot be denied simply because the plaintiff claims not to have appreciated them. However, when the plaintiff has no reasonable alternative—such as a tenant forced to use a negligently unlit exit—assumption of risk will not apply.

Napa Scenario Application

In the Napa case:

• Sarah – Sarah did not knowingly assume any risk. She was struck first by David (distracted driving) and later fatally injured when Kevin’s faulty brakes caused the ambulance crash. She was an innocent motorist and patient; therefore, assumption of risk does not apply to her.
• David and Mary – Mary, as a passenger, could potentially raise issues of assumption of risk if she knowingly distracted David while driving. If she encouraged him to look at TikTok videos while on the highway, a defense attorney might argue she voluntarily created or accepted the risk of harm from his distraction. Still, Sarah’s estate would not be affected by this; it would go more to Mary’s own potential claims.
• Kevin – Had Kevin offered a ride to a friend who knew his brakes had been defective for years and got in the car anyway, that passenger could be barred from recovery under assumption of risk. But since Sarah was in an ambulance at the time, she did not assume Kevin’s risk.

Act of God

Technically, the rule that no one is responsible for an “act of God” (sometimes called force majeure) is not an excuse but a defense based on a lack of causation. If a purely natural force caused the harm, then the defendant was not negligent in the first place.

For example, a marina tasked with safeguarding boats moored at its dock is not liable if a sudden and violent storm—against which no precautions could be effective—destroys the vessels. The harm is attributed to nature, not to any failure by the marina.

However, if it is foreseeable that harm could result from a negligent condition triggered by a natural event, liability may still follow.

• Case Example – Johnson v. Kosmos Portland Cement Co. (1933):
  A company failed to remove residual explosive gas from an oil barge. Lightning struck, ignited the gas, and injured several workmen. The court held the company liable because its negligence lay in leaving the gas present—it was foreseeable that some chance occurrence (lightning, sparks, or other ignition) might trigger an explosion.

Napa Scenario Application

In the Napa case, Sarah was first struck by David’s distracted driving and then fatally injured when Kevin’s faulty brakes caused an ambulance crash.

• If instead of Kevin’s negligence, the ambulance had been struck by a massive earthquake that caused vehicles to collide on I-80, the defendants might invoke the act of God defense. The earthquake would be seen as the true cause of the harm, breaking the chain of causation.
• But if Kevin’s poorly maintained brakes failed during a heavy rainstorm, he could not claim “act of God.” Rain is foreseeable, and his negligence in failing to maintain the brakes combined with the weather to cause the crash.

Vicarious Liability

In some situations, a person or organization may be held legally responsible for the wrongful acts of another, even if they did not personally commit the act. This principle is known as vicarious liability.

The most common application arises in the employer–employee relationship, where an employer can be held liable for the negligent acts of an employee if those acts were committed within the scope of employment. This doctrine, often expressed in the Latin phrase respondeat superior (“let the master answer”), reflects the idea that employers are in the best position to:

1. Spread the cost of accidents through insurance, and
2. Implement training and policies to reduce risks in the future.

Importantly, vicarious liability does not mean the employee is free from responsibility—both the employee and the employer may be held liable. The key inquiry is whether the employee’s wrongful conduct occurred while carrying out job-related duties, rather than acting solely for personal reasons.

Traditional Example

A delivery driver employed by a shipping company causes an accident while making deliveries along his assigned route. Because the driver was acting within the scope of employment, the shipping company can be held vicariously liable for the injuries caused, even though the company itself did not directly commit the negligent act.

Napa Scenario Application

In the Napa scenario, Sarah was first struck by David (distracted by Mary’s TikTok video) and later fatally injured when the ambulance carrying her collided with Kevin’s car due to his faulty brakes.

If the ambulance driver had been negligent—for example, by speeding recklessly through a red light without ensuring the intersection was clear—the private ambulance company could be held vicariously liable for the driver’s negligence. Because the driver was acting within the scope of employment (transporting a patient to the hospital), the company shares legal responsibility for the harm caused.

By contrast, Kevin’s liability is personal, because his brake failure was due to his own failure to maintain his vehicle. There is no employer involved in his case, so vicarious liability does not apply to him.

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KEY TAKEAWAY

The most common tort claim is based on negligence. To succeed in a negligence claim, the plaintiff must establish by a preponderance of the evidence that:

1. The defendant owed a duty of due care,
2. The defendant breached that duty,
3. The breach was both the actual cause and the proximate cause of the plaintiff’s harm, and
4. The plaintiff suffered measurable damages, which can be compensated in money.

Negligence can sometimes be imputed to another party. For example, under the doctrine of respondeat superior, an employer may be held liable for the negligent acts of its employee committed within the scope of employment. Similarly, the owner of a car who lends it to another person may be liable if that driver negligently causes injury.

Defendants may raise several defenses to negligence claims. These include assumption of risk (where the plaintiff knowingly accepts a risk of harm) and comparative negligence (where damages are reduced according to the plaintiff’s share of fault). In the few jurisdictions that still apply contributory negligence, any negligence on the part of the plaintiff will completely bar recovery, no matter how slight.

EXERCISES

1. Explain the difference between comparative negligence and contributory negligence.
2. How is actual cause different from probable cause?
3. What is an example of assumption of risk?
4. How does res ipsa loquitur help a plaintiff establish a case of negligence?