NEGLIGENCE

The prima facie case for negligence requires:

1.
2.
3.
4.

Duty is owed to the Plaintiff by the Defendant

Breach of the Duty
Causation: The Defendant caused the harm to occur.
Damages: The Plaintiff suffers harm.

Duty:
In order to hold a defendant liable for negligence, the defendant must owe
a duty of reasonable care to the plaintiff. Two issues arise in terms of duty
of reasonable care:
1. Foreseeability
2. Standard of Care
Foreseeability
The duty of care must be toward a foreseeable Plaintiff.

Test for foreseeability:

Standard of Care
The Standard of care that the Defendant must exercise to wards the
plaintiff is that of a reasonable, ordinary and prudent person in the same or
similar circumstances.
Breach of the Duty:
In order to be held liable for negligence the action by plaintiff must fall
below standard of care.
The primary issue is where to draw the line as to the standard of care.
Factors to consider in drawing the line are:
1. Custom in the community
2. Violation of statute (negligence per se):
Violating a statute creates a rebuttable presumption of negligence.
Defendant is presumed to be liable for negligence if he breaks a law and
cause harm to the plaintiff but he can rebut that presumption by showing
that there was a custom to break the law.
3. Res Ipsa Loquitur:
Latin for "The thing speaks for itself." This doctrine draws an inference of
liability because the thing that caused the accident was in the exclusive
control of the defendant. In other words, it couldn't be anyone but the
defendant who caused the harm.

Causation:
The defendant caused the harm to occur. There are two types of causation:
1. Actual Causation; and,
2. Proximate Causation.
Actual Causation: Did the defendant actually cause the harm to occur?
There are two different tests you can use.
"But for" Test: Ask yourself the question: "But for the defendant's actions,
would the plaintiff's harm have occurred?"
Substantial Factor Test: If several causes could have caused the harm, then
any cause that was a substantial factor is held to be liable.
Proximate Causation: This sometimes difficult to grasp concept is actually
very simple on most exams. Be sure to check with your professor but if in
doubt, use the following generally accepted test:
Foreseeability Test: If harm is unforeseeable, then Defendant is not held
liable by reason that there is no proximate causation.
Famous Proximate Cause Case: Palsgraf v. Long Island RR. Judge
Cardoza. Railroad guard pushes man who drops package. Package
contains hidden fireworks that explode and cause scales to fall harming
Plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff
so no proximate cause.
Damages:
The Plaintiff must suffer some harm. Two issues arise:
1. Was there actual harm?
2. Did plaintiff attempt to mitigate the harm?
Actual harm or injury: Can be shown by the following:
1. Personal Injury
2. Property Damage
Plaintiff gets Cost of repair OR fair market value
3. Punitive Damages
Extra damages beyond actual damage is available if the defendant's
behavior was wanton and willful, reckless or malicious.