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Four elements of negligence: All you need to know

Any unintentional act that causes injury to another person or property is negligence. Negligence may be an act of omission which results from inaction or which someone should have done but did not. Negligence may also be due to an act of commission that results from an action that the plaintiff should not have done.

Four elements of negligence

  1. Duty –  The plaintiff must prove that the defendant owed a duty of care
  2. Breach of duty – The plaintiff needs to prove that the defendant breached the duty of care in his/her acts
  3. Causation – To win a negligence case, the plaintiff has to prove that the harm was caused by the actions of the defendant
  4. Damages – The plaintiff needs to prove that he/she suffered harm or injury as a result of the defendant’s action or inaction.

To sue somebody for negligence the first thing you are going to have to do is establish that the defendant owes you a duty of care

Duty of care results from three origins

  1. A relationship that exists in the situation for example between an employer and employee
  2. The voluntary assumption for example when a bystander attempts CPR during an emergency
  3. As mandated by the law, for example, requiring the presence of an ambulance during a football game

There are three categories of nature of duty: Invitee, licensee, and trespasser.

An invitee has the highest protection, must warn and inspect the premises. A licensee must use the premises only for their own purpose, must warn but not inspect. Trespasser has the least protection of the three categories.

There are four types of risks related to the breach of duty: Inherent risk, negligent behavior, ordinary negligence, and aggravated negligence.

Inherent risk is integral to the activity, negligent behavior is not in accordance to the standard of care established for professional, ordinary negligence refer to the duty to use due care to ensure risk to the participant does not increase beyond the inherent risk, and lastly, aggravated negligence is reckless misconduct.

Causation refers to the close connection that exists between an act and the injury that results. Foreseeability refers to the ability of a reasonable individual to identify risk. Proximate cause refers to the injury being a foreseeable consequence of the conduct.

Types of damages in negligence
  1. Compensatory damages are awarded to cover for the actual damage or loss for example economic loss or physical injury.
  2. Punitive damages are awarded as a punishment for the un-reasonable conduct for instance when an individual did something on purpose.

Assumption of risk refers to the doctrine under which an individual is not allowed to recover damages for injuries they exposed themselves.

Contributory negligence is a behavior that the plaintiff involves himself in which increases the chances of injury occurrence.

Comparative negligence is when contributory negligence reduces recovery but not prevent it.

A preponderance of the evidence is a situation in which all the elements required to prove negligence exists. Presumption of negligence is when the four elements of negligence do not exist, but the injury would not have occurred normally unless negligence was involved.

A reasonable person test in negligence determines what a reasonable person would have done in the same situation.


Elements of a tort

  1. Duty (defendant owed plaintiff by statutory or common law): e.g. ordinary care; use foreseeability-of-risk test
  2. Breach of duty: failure to exercise ordinary care, the act of negligence
  3. Proximate cause: “legal” cause, #2 caused harm (actual & foreseeable)
  4. Injury/damage/harm: protected against negligence

Ordinary care

  • the level of care a reasonable person with the same experience would exercise under the same circumstances; can exclude children, physically or mentally disabled, emergencies, higher std for extra skills/knowledge; part of common law;


conduct which causes an unreasonable risk of harm to others; part of tort law

Who has a duty to act?

  • common carrier w/passengers
  • innkeeper w/guest
  • employer w/employees
  • school w/students
  • landlord w/tenants in common areas
  • business open to public w/customers
  • custodian w/those under custody (incl. parents w/children)
  • for FORESEEABLE circumstances

Tort law

  • addresses the allocation of losses arising out of human activity

Strict liability

  • when the nature of the activity determines liability regardless of level of care by defendant)

Intentional torts

  • defendant intends to cause the consequences of his acts or should realize with reasonable cerainty that the consequences will result from his acts (e.g. assault, libel, etc)

Criminal neglicence

  • ordinary negligence to a high degree, creating a substancial risk of death or serious bodiy harm; criminal act caused by negligence; e.g. homicide by negligent operation of a motor vehicle

Accident v. Injury negligence

  • Accident aka active negligence (e.g. driving negligently) differs from injury aka passive negligence (e.g failure to wear a seat belt)

Foreseeability-of-risk test

  • a duty is owed to the plaintiff if the consequences resulting from the defendant’s negligent conduct ought to have been reasonably foreseeable by the defendant

Duty of possessors of land

  • -to trespassers (liability only for intentional acts (intending to cause harm), except for children/attractive nuisance situations- can’t hold children accountable)
  • -licensees (responsibility to warn of hidden dangers of which the owner knows)
  • -invitees (responsibility to exercise reasonable care in providing a safe place (incl. warning of dangers))


  • acting w/o intent to inflict the particular harm but in a manner which is so unreasonably dangerous that the person knows or should know that it is highly probably that harm will result

Manufactured goods duties

  • duty to exercise ordinary care in the design, construction & manufacture of its product so it is safe for intended use; must check by testing & inspecting

The “Baseball Rule”

  • prohibits a spectator who is injured by a flying baseball from making a claim against the team or other responsible parties b/c he knowingly exposes himself to the inherent risks; extends to other sports

Immunity statutes

  • you can’t be sued even though you may have been negligent;

e.g. someone administering emergency care (if they mess up), “castle doctrine”- immune of actions protecting self from others who forcibly enter home, in vehicle or place of business

Establishing proximate cause

  • first must est. if there was actual cause (varies by jurisdiction):
  • “But for” test: would the event not have occurred but for the defendant’s conduct?
  • “Substantial factor” test: used in WI, was the defendant’s conduct a substantial factor in causing the event?
  • general test- were the consequences foreseeable?

Limitations on proximate cause

  • Unforeseeable consequences (to this specific plaintiff)
  • Superseding cause (third person/force/event supersedes the defendant’s act of negligence)

Negligence per se

“negligence as a matter of law”

1. a statute exists & was violated by defendant

2. statute intended to protect against the harm that occurred

3. the plaintiff was in the protected class

Res ipsa loquitur

“the thing speaks for itself”

can infer that the defendant was negligent unless he offers a satisfactory explanation otherwise

  • *Defendant had control over the circumstances surrounding the event
  • Event would not have occurred in the absence of negligence
  • No other reasonable explanation for the event offered by defendant (burden of proof on defendant!)
  • Does not apply when an unexplained event could have had one of several causes!

blindfold v. sunshine states

blindfold (WI)- jury not instructed on effect of verdict answers

sunshine (most other states)- jurors are instructed on legal consequences of verdict answers

  • Job of judge & jury in negligence cases
  • judge: duty, proximate cause, whether compensable injury was suffered by plaintiff
  • jury: breach of duty, actual cause, allocation of negligence, compensation for injury

Comparative negligence

when the jury must divide up the blame between the defendant(s) & plaintiff(s)

3 approaches:

  • Any contributory negligence of the plaintiff prevents recovery (few states)
  • Pure comparison- recovery strictly governed by % of fault assigned by jury (some states)
  • Modified comparison- pure comparison applies unless plaintiff’s negligence exceeds that of defendant in which case he recovers nothing (most states)

several, joint & several, liability, tort reform

If there is more than 1 defendant:

  • -Several: plaintiff’s recovery ltd to % of fault assigned to that defendant
  • -Joint & several: ea. defendant can be held liable for all NET losses (total can’t exceed verdict; must subtract plaintiff’s negl.)
  • -Tort reform: defendant only liable for full amt if his liability exceeds a certain %
  • WI rule: must be at least 51% liable to owe full amt, else just %
  • Damage caps: lts on what jury can award for certain damages
  • *Ask self- is case in WI??*

Defenses to negligence

Defendant shows P can’t prove elements of negligence

  • Contributory negligence (minority v majority rules)
  • Assumption of risk (if the plaintiff knew of the defendant’s negligence)- not recognized in many states incl. WI
  • Statutes of limitation (plaintiff must start lawsuit w/in certain period of time, can’t if waits too long)

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