Tackling the most important topics of law school, Part 1: Negligence and duty, a “crash” course

August 1, 2013

Law School 101a(Editor’s note: Over the next ten weeks, we’ll be covering some of the most prominent legal concepts taught in law school to help students faced with these topics, whether for the first time or as part of a review, better comprehend them.)

Our first topic in this series is a legal concept that is easy to learn, yet hard to master: negligence.

Someone is legally “negligent” when he or she has caused injury to someone else because the actor has been careless.  Negligence is distinguished from intentional torts such as assault and battery by the fact that the negligent actor did not intend to cause harm.

Of course, this definition won’t help too much in an exam question (or in actual practice).

Instead, every negligence analysis begins with defining the tort as being composed of four elements:

  1. A duty of care,
  2. a breach of that duty,
  3. an injury, and
  4. the breach as the cause of the injury.

Duty of care

The first element, the duty of care, is a legal obligation imposed on an individual that requires him or her to adhere to a standard of “reasonable care” while doing anything that could foreseeably cause harm to another.

This duty is as broad as it sounds: it applies to nearly everyone in nearly everything that they do which could be foreseen to harm another.

The standard of “reasonable care” is the care that the fictitious “reasonable person” would take in his actions.  According to the Restatement of Torts, this person “is never negligent.”  This individual does not do that which is common practice among many members of the community if such action would be negligent.

Living up to this standard is not the same as an individual actor using his own best judgment; it expects the actor to follow the example of an ideal, yet nonexistent person.

Children and the mentally handicapped also owe a duty of care to others; however, children “of tender years” (usually 16 years of age and younger) are not held to the “reasonable person” standard.  Rather, a child’s conduct “is to be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience.”

The mentally handicapped are not so fortunate; for policy reasons (specifically, to incentivize their caregivers to closely monitor them), the law holds mentally handicapped adults to the same “reasonable person” standard as everyone else.

Finally, the more dangerous the activity, the more care is required.

Breach of Duty

What does a breach of this duty of reasonable care look like?

According to the Restatement, a breach of duty – a negligent act, in other words – is:

(a) an act which the actor as a reasonable person should recognize as involving an unreasonable risk of causing an invasion of an interest of another, or

(b) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.

You will (or may have already) come across numerous examples of acts or failures to act that are considered negligent, so I won’t take up any more space by listing any. 

The standard in determining whether a risk was unreasonable is the “reasonable person” standard; if the “reasonable person” wouldn’t have taken the risk (perhaps because he does everything by the book, or because he was privy to facts that escaped the actor’s notice), then the actor is negligent for taking the same risk.


People are negligent every day, yet our courts haven’t been flooded with negligence actions because there is either no injury, or the injury is too inconsequential to justify taking legal action.

Injuries can be personal (physical harm), pecuniary (loss of money), or related to property (property damage or loss).  They can also be mental or emotional harm, but many courts often require medical examinations to verify these injuries.


The final element is also one of the most difficult to fully explain.

The Restatement finds that a negligent act to be the causation of an injury to another if the negligent conduct “is a substantial factor in bringing about the [injury],” and “there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.”

There are several considerations to determining whether the negligent conduct is actually a “substantial factor:”

  • The number of other factors that contributed towards producing the harm and the extent that they have in producing it;
  • Whether a chain of causation can be linked between the actor’s conduct and the injury, or whether the injury only came about because of the added acts of another person or force; and
  • Lapse of time.

The shorter the span of time and the fewer intervening forces between the act and the injury, the more likely it is that the actor is negligent.

A long period of time between the negligent act and the injury, however, opens up a great number of possibilities that other forces – called “intervening causes” – may have acted to sever the causal chain between the act and the injury.

However, intervening causes only absolve the original negligent actor of liability if both the intervening cause and the injury caused were unforeseeable (such an event is called a “superseding cause.”  One of the more common types of unforeseeable intervening causes are the criminal acts of third-parties, which are usually categorically labeled as unforeseeable.

On the other hand, a foreseeable intervening cause will, with little exception, not relieve the original negligent actor of liability; if the intervening cause is the negligent conduct of another actor, both actors are liable to the one injured.

Well, it looks like I’m out of space even though I’ve just covered the basics.  If you have any specific questions about negligence, feel free to post them in the comments below!