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Elements of Negligence by Mind Map: Elements of Negligence
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Elements of Negligence

Negligence applies to many kinds of wrongful conduct. Four elements MUST exist for a plaintiff to win a negligence action—duty, breach of duty, causation, and damages. The plaintiff must prove all of these elements in order to be successful in a negligence claim. If ALL FOUR ELEMENTS ARE NOT PRESENT, IT IS NOT A TORT. It may be some other kind of legal action, but it will not be a tort.

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Everyone has a general duty to exercise reasonable care toward other people and their property. If a person acts unreasonably, he or she has breached the duty of care. In order to judge whether or not a person's conduct is reasonable, the law asks: Would a person of average intelligence and general regard for others have acted in the same way? If the answer is no, then the person's behavior was unreasonable. The law assumes that reasonable people do not break the law. Certain professionals, such as doctors, pilots, and plumbers, are held to the standards of reasonably skilled professionals in their field. Even minors are liable for the torts they commit. However, when deciding the reasonable conduct of a minor, the law usually compares a minor's conduct with other individuals of the same age, intelligence, and experience.


The first test to see if someone has breached the duty of care is known as the reasonable person’s standard.  If the court could find that the reasonable person could have acted the way that the defendant did, there is no breach of duty.  If the defendant’s actions fail to meet this standard there is a breach of duty.  The reasonable person is considered an average person within the community, and in this case, a reasonable person rarely has the specific characteristics of another person (i.e., we hold beginning construction workers to the same standard as the average construction worker).  We hold a person of less intelligence to the level of intelligence of the reasonable person.  An exception to this is where a person has adopted a special skill, in which we hold the person to the standard of a reasonable person who has that skill.  We also hold children to the reasonable child of the child’s age. An interesting test which brings a lot of light to the reasonable person test was presented by Judge Leonard Hand. The formula (known as the hand formula) states that a person is not liable when the cost of acting in an alternative way is more than the probability of a harm happening multiplied by the gravity of the potential injury.  Therefore, if one could adopt action A and the likelihood of a foreseeable harm occurring is 1% and the damage that results if the harm occurs is $1,000, a person is not negligent if he adopts action A if adopting the safer action B would cost (1,000) x 1% or 10 more dollars.    Another standard of care that is adopted is one that is mandated by statute.  A person committing an act that violates a statute is found to be "negligent per se".  Not every statute, however, is a standard of care.  Some statutes have civil remedies designed in them, and many courts will apply a standard of care when someone violates a criminal statute.  In general if a statute is not a criminal statute or provide its own cause of action, then one must ask if the statute is intended to protect a class of people?  Next, are the facts of the case within the purpose of the statute?  What is the purpose of the statute?  For example, a speed limit law where the intent of the statute is to conserve gasoline would not create a standard of care, but one that was designed to protect other drivers and pedestrians would be. A final source for a standard of care arises from the customs of an industry.  For example it could be a practice of landlords to provide a peep hole for their tenant’s doors.  If it could be shown that the landlord/defendant did not follow this custom, then he might have breeched a standard of care.  Custom, however, is a weaker source of a standard of care as customs changes over time, and customs are not always the safest course of action.


In order to prove causation, there must be proof that the defendant's actions actually led to the harm suffered by the plaintiff. The element of causation is broken down into two separate issues—cause in fact and proximate cause. If the harm would not have occurred without the wrongful act, then the act is the cause in fact. In other words, the injury was caused by the act. For example, if I hit you with a bat and broke your arm, my striking you caused the injury.  To prove proximate cause, there must be a close connection between the wrongful act and the harm caused. The harm that resulted must have been foreseeable from the wrongful act.  Causation and probable cause are often confused. For example, if I hit you with a bat and broke your arm, and you fell against a woman, pushing her in front of a car, injuring her, you are the cause of her injury. My hitting you with a bat, however, is the proximate cause. It is FORESEEABLE that if I hit you, you would fall and could cause another harm.


The basic idea behind damages is that the plaintiff should be restored—in the form of money—to his or her original position before the negligence occurred. Courts allow plaintiffs to collect for medical bills, lost wages, pain and suffering, and other losses. Generally courts will require that these damages be reduced to the present value of the claim.  This means that the judgement should be reduced by the jury to account for any reasonable investment the person would do with the money.  Compensatory damages are not taxed by the court.  Attorney fees however cannot be collected against the loser of the case, unless a statute would permit it.  This last rule is known as the American Rule.