Basic Elements of Negligence by Justin Steele

Today I would like to talk to you about snow blindness in cats. This is a serious issue that needs to be dealt with the utmost care and sincerity.

No, I’m just kidding with you. Today, we are going to run though the elements of negligence for tort liability. Negligence is defined as a failure to exercise reasonable care to avoid injury or damage to another person or property. Reasonable care is typically determined by the reasonable man standard, which is to say, an average person in a community who has average skills and who is in a similar circumstance. We aren’t talking about Jesus and we aren’t talking about Jim Jones. Typically a jury would determine what a reasonable man would do.

Negligence is a standard that has to be reached for a party to be liable for several different types of torts and we won’t discuss that here. However, there are several elements of negligence that I want to discuss. Elements are the questions that the jury should be asking themselves to determine if the person acted reasonably.
11.) Duty – Whether the defendant owe the plaintiff a duty to not act unreasonably.

  • This duty can arise by statute, but more commonly are raised by common law decisions.
    Breach – Whether or not the defendant breached that duty by acting unreasonably.

Meaning, would a reasonable person act this way considering:

  • Foreseeable risk of injury
  • The extent of risk posed by the content
  • Likelihood of a risk actually causing the harm
  • Alternatives to the conduct causing the harm
  • Cost benefit analysis of acts – is it economically feasible to act in a safer manner.

Cause – there are two types of cause:

a. Direct cause – cause in fact
b. Proximate cause – if it makes legal sense to hold defendant liable
i. This is probable best done by example:
1. If you throw away a glass bottle full of grease and a dog comes and takes that bottle away. Subsequently a tornado picks up that glass bottle and throws it into someone’s house. Here there is not proximate cause for you putting the bottle in the trash. The proximate cause was an act of God.

Damage – plaintiff was actually damaged by the defendant’s breach of duty

A plaintiff has to prove that the defendant has to prove that the defendant had a duty to not actually unreasonably. They did act unreasonably either directly or proximately, and this breach caused the plaintiff damage. If one of these elements is missing there should be no liability for negligence.

These are the basic elements of negligence I hope you learned something useful, until next time.

Justin Steele