Clem on Torts: Chapter 4: Negligence

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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Negligence is defined as the failure to use reasonable care in carrying out some activity. If the negligence causes harm, then the person committing the act of negligence can be liable to pay the damages of the person harmed.

It should be noted that some of your professors might be sticklers for the definition. Some of them insist that “negligence” is the failure to use due care. They will then go on to say that the negligence might be “actionable” if the remaining elements are satisfied.

Other professors, however, might be equally adamant that “negligence” is the case in which all four elements of the tort have been satisfied. They will say, for example, that there is no negligence in the absence of damages.

This is largely a matter of semantics. But you would be wise to learn how your professor normally uses the term. When you get around to writing the final exam, you want to make sure that you use the same terminology your professor uses.

There are four elements of a negligence cause of action. In the case of the intentional torts, you’ll occasionally see certain elements worded differently, and in one professor’s eyes, a particular tort might have a different number of elements from what I’ve presented here. Therefore, memorization of the different elements is of minimal usefulness, as long as you understand the concepts. But if there’s one thing you should memorize for torts, it is the four elements of a negligence cause of action.

Here are the four elements of a negligence cause of action. We’ll address each of them in turn:

  1. Duty
  2. Breach
  3. Causation
  4. Damages


Everyone has a duty to act reasonably to protect others from foreseeable unreasonable harm.

The risk to the particular plaintiff must be foreseeable.

In Palsgraf v. Long Island RR, 248 N.Y. 339, 162 N.E. 99 (1928), a passenger was running for a train. A guard on the platform pushed him aboard. In the process, a package fell out of the man’s hand. The package contained fireworks, and the fireworks exploded when they hit the ground. This explosion caused a scale to fall down on the other end of the platform. The scale hit the plaintiff, who was nowhere near the scene of the original explosion.

Justice Cardozo held that the guard did not owe any duty to the plaintiff. It might have been foreseeable that the man would be injured. Or perhaps it would be foreseeable that another passenger near the train would be injured. Or perhaps if the guard knew that the package contained explosives, then it would be foreseeable that someone far away would be injured. But in this case, the guard owed no duty to the plaintiff. It was simply not foreseeable that someone far away would be injured by pushing a person onto a train.

The risk must be unreasonable. Whether or not the risk is reasonable is expressed most famously by Judge Learned Hand in United States v. Carroll Towing, 159 F.2d 169, 173 (2nd Cir. 1947): “[The] duty . . . to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.”

Ordinarily, there is no duty to rescue another person. There are, however, a number of exceptions. In these cases, the duty of care might include a duty to rescue. One case would be a special relationship between the parties, such as a passenger and a common carrier. The common carrier might have a duty to rescue in some situations. There might also be a duty to rescue if the defendant caused the peril in the first place.

Finally, even though there is no duty to rescue, there is a duty not to prevent others from attempting a rescue. Therefore, if the defendant starts rescuing someone, then other potential rescuers might see that a rescue is in progress, and go about their business. If the rescuer abandons the rescue, or does it negligently, then he or she could be liable in this situation, because the action prevented others from making a rescue.


The second element of a negligence cause of action is a breach of the duty. Again, some people use the word “negligence” to refer to the duty and the breach. Others insist that the word “negligence” should not be used unless the other two elements are also met. It’s largely a matter of semantics, but beware of your professor’s personal preference.

Breach is defined as the failure to act as a reasonable person would to fulfill the duty of care. Whether or not there has been a breach of the duty takes into account many factors. Again, the standard is objective: Whether the defendant did the things that a reasonable person would do.

“Custom” might be a relevant factor, but it is not determinative. In other words, the “custom” might be wrong.

The defendant’s physical characteristics are relevant in determining whether the duty is met. Similarly, the defendant’s age can be taken into consideration. A child is capable of negligence, and can be successfully sued for negligence. However, the test is whether the child was acting like a reasonable child of that age and experience. In other words, the child is not held to adult standards. But if the child is engaged in an adult activity (for example, driving an automobile), then he or she would be held to the normal adult standard.

Malpractice is really just another word for negligence, and it is applied to professionals such as doctors or lawyers. If a doctor is being sued for malpractice, it’s really nothing more than a special category of negligence case. In the case of a professional, the standard is whether the professional possesses the skill normally possessed by members of that profession.

In a malpractice case, expert testimony is normally required to establish what that skill level is. There would be an exception, though, in cases where even a layperson would understand that the act was or was not negligent.

One issue that will invariably arise is whether the violation of a statute constitutes a violation of the duty of care. Different jurisdictions handle the question somewhat differently. However, in all jurisdictions, the statute must one that is designed to protect the group of which the plaintiff is a member, and it must be designed to protect against the type of harm that happened.

For example, if the defendant is violating a statute about speeding, then this would probably be relevant (although handled differently in different jurisdictions). After all, the speeding statute is presumably designed to prevent car crashes, and is designed to protect other people using the roads.

In a majority of jurisdictions, an unexcused violation of such a statute is negligence per se. In a large minority of jurisdictions, the violation of the statute is evidence of negligence, although a jury in such a jurisdiction might conclude that it was not negligence in one particular case.

The violation of the statute must be the cause of harm. This is why, for example, that the mere failure to have a driver’s license is generally not negligence. This is because it is completely possible to drive a car safely without a driver’s license. It’s not legal, but it’s not necessarily unsafe: The unlicensed driver might be a very safe driver, but merely forgot to renew an expired license.

As noted above, violation of a statute is negligence (or evidence of negligence) only if the violation is unexcused. A violation could be excused by circumstances out of the defendant’s control, or in cases where it would be more dangerous to obey the statute, or in an emergency. Also, the violation of the statute is excused if the defendant is ignorant of some fact that would make the statute not apply. Ignorance of the statute is not an excuse. But in this context, ignorance of some fact might constitute an excuse.

During your study of breach of duty, you will likely learn your first Latin term, as you spend a few days talking about res ipsa loquitor, which means “the thing speaks for itself.” Res ipsa loquitor is a type of circumstantial evidence that the plaintiff can use to establish negligence in cases in which nobody actually witnessed the negligence. To prove a breach of duty using res ipsa loquitor, the plaintiff must show three things:

  1. This is the sort of thing that doesn’t normally happen in the absence of negligence.
  2. All other explanations have been eliminated. (One part of this test is that the instrumentality of negligence was in the defendant’s exclusive control.)
  3. The plaintiff didn’t cause the accident.

If the plaintiff can establish these three things, then he or she has established breach of duty through res ipsa loquitor.


The third element of the negligence cause of action is causation. There are two types of causation, and both must be satisfied. First, the negligence must be the “cause-in-fact” of the plaintiff’s injuries. In most cases, the cause-in-fact requirement is satisfied by the “but for” test. In order to establish that A caused B, we must be able to say that B would not have happened but for A: If A never happened, then B would not have happened. If this test is met, then we have established cause-in-fact.

The necessity of proving cause-in-fact has been relaxed to a certain extent. The leading cases are Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948), Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944), and Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924 (1980). These cases support the imposition of alternative liability. In each case, the plaintiff was injured by one defendant, but it was unknown (and perhaps impossible to know) which defendant actually caused the injury. Summers involved two defendants discharging their guns at the same moment, and Ybarra involved a hospital patient being injured during surgery by one doctor out of a group of doctors. Finally, in Sindell, there were multiple manufacturers of the same drug, and the plaintiff had no way of knowing which manufacturer’s drug she had taken. In each case, in spite of the impossibility of proving exactly which defendant was responsible for the exact action that caused the injury, the court allowed the defendants to be held jointly liable.

Once we have established cause-in-fact, the next step is to establish "proximate cause" or "legal cause". Obviously, the "but for" test is easy to establish in most cases. For legal liability to attach, we need a stronger test.

Law students often have a difficult time grappling with proximate cause, because they expect it to be a completely logical concept. The name adds to the confusion, because the student believes that if he or she studies the material enough, it will eventually become clear where the line is drawn: He or she will be able to see that one injury was proximate enough, and another injury was too distant and, thus, not proximate.

The word "proximate" is helpful to a certain extent. Because that’s what the courts are trying to do: They are trying to weed out the cases where the injury is just too far removed from the negligence. The only cases where the defendant should have to pay are those cases where the injury is "proximate" enough to the negligence. So it’s natural for the student to try to figure out the definition of "proximate". Once you've figured out the definition, you can apply it to the facts before you.

This sounds good in theory, but in reality, there’s not a good logical way to draw the line between an injury being "proximate" and another injury being "not proximate enough". Or to put it another way, there's really no good definition of proximate cause. So instead of worrying about logic, the courts have come up with some legal rules. A court looks at a case and decides that this is not a case where the defendant should have to pay. In those cases, they say that there was no proximate cause. In other cases, the court decides that the defendant should have to pay. And in those cases, they say that there was proximate cause. But it’s generally an artificial distinction.

Once you realize this, you can stop worrying about finding the exact definition of "proximate cause". Instead, when you are writing your final exam, you’ll need to concentrate on the case law. Instead of reciting the definition, you need to explain that there is proximate cause in this case, because the facts are so similar to case X, where the court found proximate cause. Or, the facts are so similar to case Y, where the court found that there was no proximate cause.

If you do insist on a definition of proximate cause, the best I can come up with is this: A cause was proximate if it was not extraordinary or improbable or unforeseeable. But that’s about the best I can do. The word “foreseeable” is usually used. So when you conclude that your fact pattern is actually closer to case X, where they found proximate cause, be sure to toss in that the causal link was foreseeable. But don’t stress too much over the definition. In reality, there is none.

There are some special rules about proximate cause that have evolved over the years, and they should be mentioned. Most courts do recognize proximate causation in the case of prenatal harm. Even though the negligence took place before someone was born, or even before they were conceived, if the person is injured, then there can still be proximate cause.

If the loss is merely economic, then there is probably not proximate cause. The leading cases on this point are In re Kinsman Transit Co., 338 F.2d 708 (2nd Cir. 1964)(Kinsman I) and Kinsman Transit Co. v. City of Buffalo, 388 F.2d 821 (2nd Cir. 1968) (Kinsman II). The Kinsman cases involved barges which got loose and crashed into a bridge. The bridge collapsed and flooded the land near the river. In Kinsman I, the flooded out property owners were allowed to sue. But in Kinsman II, the owners of other boats, who were unable to use the river, were not allowed to sue for their lost profits.

The question of mental harm has led to a number of different approaches in different jurisdictions.

If the negligence causes physical harm to a person, and the physical harm causes mental harm, most jurisdictions will allow the plaintiff to recover. Similarly, if the negligence directly causes both physical and mental harm, then most jurisdictions will allow the plaintiff to recover. One rationale for this decision is that the presence of physical symptoms lends more credibility to the claim of mental harm.

Some jurisdictions follow the “impact rule”. The plaintiff need not show any physical symptoms, but there must have been a physical impact.

In most jurisdictions, there will be no recovery to a plaintiff who merely suffered mental harm as a result of seeing another person injured. But some jurisdictions will allow such a recovery. For example, California and New York will allow a recovery in the case of a close relative. In most jurisdictions, such a plaintiff will be able to recover if he or she was inside the “zone of danger”. In other words, a plaintiff who was a passenger in a vehicle might be able to recover for mental damages at having witnessed the other passenger be injured. But a mere witness to the accident, who was not in the “zone of danger” would not be able to recover.

Another issue that comes up in the area of proximate cause is that of intervening cause or superseding cause: After the defendant’s original negligence, some other event happened, and that event was also a cause of the plaintiff’s injuries. Different courts use the words differently, but most of them use the word “superseding” cause when concluding that the original negligence was no longer a legal cause. A merely “intervening” cause, on the other hand, might not absolve the original defendant from liability.

If the intervening cause was probable at the time of the original negligence, then it will not be held to be a superseding cause. In other words, the original negligence is still a proximate cause.

In general, it is foreseeable that additional negligence will take place after the original negligence. For example, a common hypothetical is that the defendant causes an accident and the plaintiff is injured. The plaintiff is taken to the hospital, where the doctor commits malpractice. This intervening negligence is foreseeable, and the defendant is still liable for the plaintiff’s injuries, even though the negligent doctor caused some of them.

A criminal act, on the other hand, is generally not foreseeable. Therefore, if the defendant’s negligence set into motion a chain of events that included a criminal act, then the defendant is probably not liable for the results of the crime.

Finally, a rescue or a second accident is generally foreseeable. So if the plaintiff is injured in the second accident or the rescue, the defendant is probably liable.


The final element of a negligence cause of action is damages. In order to recover, the plaintiff must have suffered some actual damages. In the absence of any actual damages, there is no negligence cause of action.

It should be noted that in this respect, a negligence claim differs from a claim for an intentional tort. For example, if the defendant assaulted the plaintiff, the plaintiff can state a claim even if he or she has no damages whatsoever. In that case, the court could award nominal damages, such as an award for one dollar. But in the case of negligence, there is no case whatsoever in the absence of damages.

In the case of property damage, the damages are the smallest of the three following: 1. The diminution in value of the property, 2. The cost of repair, or 3. The total value of the property.

A plaintiff has a duty to mitigate his or her damages. In other words, he or she must take reasonable steps to limit the amount of damages. If the plaintiff fails to do so, then the defendant is only liable for the amount that the damages would have been if the plaintiff had properly mitigated.

One rule that should be discussed along with damages is the collateral source rule. If the plaintiff receives money from another source, then this is not taken into account when computing damages. The defendant must pay the full damages, not the damages minus the amount of the collateral source. A common collateral source is insurance proceeds. The reasoning is that the defendant should not benefit from the plaintiff’s having purchased insurance. (Of course, as a practical matter, the plaintiff will probably have to refund that amount to the insurance company, but that is outside the scope of torts class.)

There are two types of “wrongful death” case. The first type of case we need to consider is the “survival” action. Someone is injured and has a negligence cause of action against the defendant. Prior to going to trial, that person dies. Possibly, they died as a result of the accident, but the same rule would generally apply if they died for some other reason. At the time of their death, they had a valid claim against the defendant, and that claim was their property. Just like other pieces of property, there are laws which specify what happens to it. Most states have a “survival act” specifically covering this situation. In general, the cause of action passes to the person’s heirs, and those heirs can bring the lawsuit.

The other type of “wrongful death” case is one in which the defendant’s negligence caused someone’s death. If other persons (generally, the victim’s family) can show that they suffered economic loss because of the death, then that is the measure of their damages. In this case, the person who died never was a party to the case. Instead, these family members are the original plaintiffs, and they must show that the defendant’s negligence caused them a loss; for example, they could show that because of the negligence, the deceased person is no longer able to provide the support that he or she had been providing.

Of course, in many cases, these two types of wrongful death cases might be combined. For example, after the accident, the deceased person had medical bills. After he or she died, the family suffered a loss of support. The heirs can sue for the medical bills, and the family members can sue for the loss of support. In most cases, these are the same people.

Defenses to Negligence Actions

Just as with the intentional torts, the plaintiff establishes the case by proving the four elements of the cause of action. The plaintiff is under no obligation to negate any of the possible defenses. But if the defendant proves one of the defenses, then the plaintiff’s case will fail, even if all of the elements have been proven.

The first defense is contributory negligence. This is an old common-law defense. If the plaintiff’s injuries were caused, even in part, by plaintiff’s own negligence, then the plaintiff would not recover anything.

Most jurisdictions have changed this rule to a rule of comparative negligence. Under comparative negligence, if the plaintiff was also negligent, the plaintiff can still recover. But the jury needs to assign a percentage of fault, and the plaintiff will recover only the defendant’s percentage of the damages.

For example, if the jury decides that the damages were $10,000, that the defendant was 75% at fault, and the plaintiff was 25% at fault, then the plaintiff would recover only $7500.

Some states use “pure comparative negligence”. In these states, the plaintiff always recovers something. For example, if the defendant was 10% at fault and the plaintiff was 90% at fault, then the plaintiff would recover 10% of the damages.

On the other hand, some states use modified comparative negligence. In these states, the plaintiff recovers nothing if his or her fault is greater than the defendant’s. For example, if the plaintiff was 51% at fault and the defendant was 49% at fault, then the plaintiff would recover nothing.

Another defense is assumption of the risk. Occasionally, this defense overlaps with contributory negligence, and the two are easy to confuse. It’s best to look at it this way: Under contributory negligence, the plaintiff was negligent. Under assumption of the risk, the plaintiff wasn’t necessarily negligent, but instead consented to the defendant’s negligence. In order to establish the assumption of the risk defense, the defendant must prove the following two elements:

  1. The plaintiff voluntarily encountered a known risk
  2. The plaintiff relieved the defendant of the obligation to protect the defendant.

Another possible defense is the statute of limitations. As the name implies, this is a statute passed by the legislature, and it allows people to bring lawsuits for only a certain limited time. The actual time limit will vary from state to state, and also depending on the type of case. Common lengths are two or six years. The time limit generally begins to run on the date when the injury occurs, or, in some cases, on the date when the plaintiff learns of the injury.

There are also some possible immunities. Some people are immune to being sued. In a minority of jurisdictions, spouses, parents, or a person’s children are immune from being sued.

In most states, public officials acting within the scope of their duties are immune from suit.

The United States, the individual states, and municipalities are generally entitled to sovereign immunity, and cannot be sued without their own consent. (The rationale for this rule is that only the legislature, and not the courts, can appropriate funds from the public treasury.) The United States has consented to lawsuits by passing the Federal Tort Claims Act. However, in order to sue the government, the plaintiff must comply with the requirements of that act. Similarly, most states have a tort claim act which authorizes lawsuits against the state or municipalities, and the plaintiff must comply with any special requirements of that statute. One common requirement is that the plaintiff give notice to the state of his or her intention to make a claim.

Clem on Torts is also available at Amazon as a Kindle book.

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