Negligence

MBEMax wiki article — paired with the Torts question set on mbemax.com.

One-line summary

A defendant who owes a duty to a plaintiff, breaches that duty, and thereby actually and proximately causes the plaintiff damage is liable for negligence.

Mnemonic

D–B–C–D — Duty, Breach, Causation (actual + proximate), Damages.

Picture a judge slamming a gavel four times: each blow is one element. Skip a beat and the plaintiff loses.

The rule (plain-language)

Every person owes a duty of reasonable care to foreseeable plaintiffs to avoid unreasonable risks of harm. Breach of that duty, in fact and proximately causing damage, is negligence.

Elements you must hit

1. Duty — a legal obligation to conform to a standard of conduct.
2. Breach — the defendant fell below that standard.
3. Actual causation — "but for" the breach, plaintiff would not have been harmed (or the breach was a substantial factor when multiple causes combine).
4. Proximate causation — the type of harm was a foreseeable result of the breach; no superseding cause cut the chain.
5. Damages — actual compensable loss (no nominal damages in negligence).

NCBE loves to test

• Duty scope (Cardozo v. Andrews). Majority/Cardozo rule from Palsgraf: duty is owed only to plaintiffs within the zone of foreseeable danger. Andrews minority view: duty to the world. Default to Cardozo unless the call says otherwise.
• Standard of care exceptions. Children → reasonable child of like age, intelligence, experience (adult activity exception). Professionals → average member of the profession in good standing. Common carriers/innkeepers → high degree of care.
• Res ipsa loquitur. Allows inference of breach without direct proof when (1) accident is of a type that does not usually happen without negligence, (2) instrumentality was under defendant's exclusive control, (3) plaintiff did not contribute. Res ipsa gets the case to the jury; it does not guarantee a verdict.
• Negligence per se. Statute defines standard of care when (1) plaintiff is in class the statute protects and (2) harm is the type the statute aimed to prevent. Beware compliance/non-compliance excuses and statutes offering only criminal penalties.
• Thin-skull plaintiff. Defendant takes plaintiff as found. Foreseeability of type of harm is required, not extent.
• Intervening vs. superseding causes. Foreseeable intervening acts (rescuers, ordinary medical malpractice, subsequent negligent drivers) do NOT cut the chain. Unforeseeable criminal acts and acts of God usually do.

Fast hypos

Hypo 1. D speeds through a school zone at 50 mph. A child darts out and is struck. Negligence per se? Yes — child is in the class protected by the school-zone speed statute; injury is the exact harm the statute aims to prevent.

Hypo 2. A pedestrian walks between two parked delivery trucks; one truck lurches forward because its driver left it in gear. Res ipsa? Yes — this accident does not normally happen absent negligence; truck was in driver's exclusive control.

Hypo 3. D negligently runs into P's car. P is taken to an ambulance that is hit by another negligent driver. D liable for the second collision? Yes — ordinary negligence of third parties (including ambulance drivers) is a foreseeable intervening cause, not a superseding one.

Case anchors

• Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928) — Cardozo: duty limited to foreseeable plaintiffs.
• Byrne v. Boadle, 2 H. & C. 722 (1863) — origin of res ipsa (barrel of flour fell from shop).
• Vaughan v. Menlove, 3 Bing. N.C. 468 (1837) — objective reasonable-person standard.
• Wagon Mound (No. 1), [1961] A.C. 388 — foreseeability of harm type for proximate cause.
• Ybarra v. Spangard, 25 Cal.2d 486 (1944) — res ipsa extended to medical team defendants.

See also

• Proximate cause
• Defenses — comparative negligence
• Strict liability
• Products liability

Sources

Restatement (Second) of Torts §§ 281, 282, 328D, 431, 435; Restatement (Third) of Torts: Liability for Physical and Emotional Harm §§ 3, 7, 17, 29; Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928); Byrne v. Boadle, 2 H. & C. 722 (1863); Ybarra v. Spangard, 25 Cal.2d 486 (1944); Wagon Mound (No. 1), [1961] A.C. 388.