Negligence: The Foundation of Tort Law

Negligence is the most frequently tested tort on the Certified Paralegal exam. Unlike intentional torts, negligence does not require intent to harm. Instead, it focuses on whether the defendant failed to exercise reasonable care. This guide covers every element and defense you need to know.

The Four Elements of Negligence

To establish a negligence claim, the plaintiff must prove all four elements by a preponderance of the evidence:

Element 1: Duty

The defendant must owe a duty of care to the plaintiff. The general rule is that everyone owes a duty to act as a reasonable person under the circumstances. Special duty rules apply in certain situations:

Professionals: Held to the standard of a reasonable professional in that field (e.g., a doctor is held to the standard of a reasonable doctor)
Children: Held to the standard of a reasonable child of similar age, intelligence, and experience (unless engaged in adult activities)
Landowners: Duty varies based on the status of the person on the land. Invitees are owed the highest duty (inspect for and repair or warn of known and discoverable dangers). Licensees are owed a duty to warn of known dangers. Trespassers are generally owed only the duty not to willfully or wantonly harm them (with exceptions for discovered and anticipated trespassers and child trespassers under the attractive nuisance doctrine).
Rescuers: A tortfeasor who creates a dangerous situation owes a duty to foreseeable rescuers ("danger invites rescue")
No Duty to Act: Generally, there is no affirmative duty to rescue or help others. Exceptions exist for special relationships (parent-child, employer-employee, common carrier-passenger) and when the defendant created the peril.

Element 2: Breach

A breach occurs when the defendant fails to meet the applicable standard of care. Courts consider what a reasonable person would have done under the same or similar circumstances. Factors include:

The foreseeability of harm
The severity of the potential harm
The burden of taking precautions (the Hand Formula: if the burden of prevention is less than the probability of harm multiplied by the severity of harm, failing to prevent is a breach)
The social utility of the defendant's conduct

Res Ipsa Loquitur ("the thing speaks for itself") allows an inference of breach when: (1) the accident is of a type that normally does not occur without negligence, (2) the instrumentality was in the defendant's exclusive control, and (3) the plaintiff did not contribute to the accident.

Negligence Per Se: When the defendant violates a statute designed to protect a class of persons that includes the plaintiff against the type of harm suffered, the violation establishes duty and breach automatically.

Element 3: Causation

Causation has two components:

Actual Cause (Cause in Fact): The "but for" test. But for the defendant's breach, the plaintiff's injury would not have occurred. In cases with multiple defendants, courts may use the "substantial factor" test instead.
Proximate Cause (Legal Cause): The defendant is liable only for foreseeable consequences of their breach. The key question is whether the harm was within the foreseeable scope of risk created by the defendant's conduct. An unforeseeable intervening force that breaks the chain of causation is called a "superseding cause" and relieves the defendant of liability.

The famous Palsgraf v. Long Island Railroad case established that duty (and therefore proximate cause) is owed only to foreseeable plaintiffs. A defendant is not liable for consequences to persons or in a manner that could not reasonably be anticipated.

Element 4: Damages

The plaintiff must prove actual damages. Types of damages include:

Compensatory Damages: Economic damages (medical bills, lost wages, property damage) and non-economic damages (pain and suffering, emotional distress, loss of enjoyment of life)
Punitive Damages: Available only when the defendant's conduct is willful, wanton, or grossly negligent. Designed to punish and deter.
Nominal Damages: Generally not available in negligence because actual harm must be shown

Defenses to Negligence

Contributory Negligence: In a few remaining jurisdictions, if the plaintiff is even slightly at fault, they recover nothing. This is the traditional rule.
Comparative Negligence: Most states use comparative negligence. Under pure comparative negligence, the plaintiff's recovery is reduced by their percentage of fault. Under modified comparative negligence, the plaintiff recovers only if their fault is below a threshold (typically 50% or 51%).
Assumption of Risk: The plaintiff knowingly and voluntarily assumed the risk of harm. Express assumption of risk involves a written agreement (waiver). Implied assumption of risk is shown by the plaintiff's conduct.

Other Tort Concepts for the CP Exam

Vicarious Liability: Employers are vicariously liable for torts committed by employees acting within the scope of employment (respondeat superior)
Joint and Several Liability: When multiple tortfeasors are liable, the plaintiff may collect the full judgment from any one of them
Contribution and Indemnity: A defendant who pays more than their share may seek contribution from other tortfeasors

Master Negligence for the CP Exam

Negligence questions on the CP exam often present detailed fact patterns requiring you to analyze each element. Practice spotting duty issues, identifying breaches, and tracing causation. Use our flashcard system to reinforce your knowledge. Sign up free to get started.

Tort Law: Negligence Elements and Defenses