Negligence

The Negligence Floor: Duty Before Conduct

Negligence is NOT STARRED in the NCBE Content Scope. “Unstarred” means legal resources may be supplied when the topic is tested. If it is tested without resources, you need only demonstrate recognition that the topic is at issue.

You are not required to hold negligence cold because resources may be supplied. Your floor is faster and more practical: recognize the negligence triggers, know the vocabulary and order of questions, locate operative language in a supplied provision, and map each fact onto an element or exception. You do not have to hold exact element wording, exception lists, or numbered subsections. The governing law is common-law negligence, as modified by the jurisdictional authority supplied in the item.

Negligence is live when facts describe careless conduct, an omission after a person encountered danger, a collision or fall, an unsafe condition, professional treatment, an unexplained accident, a statute allegedly violated, industry practice, emotional trauma from negligent conduct, or financial loss without physical injury. Plaintiff conduct such as failing to watch, ignoring a warning, or knowingly entering a dangerous situation signals defenses.

Negligence asks whether unreasonable conduct caused legally recognized harm. Deliberate interference and liability without fault use different liability tests, while information-based claims use separate elements.

The floor’s sequence. Ask whether the defendant owed a duty, whether conduct or an omission breached that duty, whether the breach actually caused harm, whether the harm was legally attributable to the breach, and whether plaintiff conduct reduces or defeats recovery. Premises status, emotional distress, and pure economic loss add specialized gates.

A duty is ordinarily a legal question. Breach is generally a fact question measured against reasonable care. If an authority is supplied, find the operative verbs-“must,” “unless,” “only if,” or “when”-then list each required condition and exception before applying the facts.

A defendant generally has no duty to rescue or assist a stranger in peril. An omission becomes actionable when an exception creates a duty to act:

• A special relationship may require protection or reasonable assistance, such as relationships involving common carriers and passengers, innkeepers and guests, schools and students, employers and employees, or custodians and vulnerable persons.

• A defendant who creates a risk must take reasonable steps to prevent or reduce the resulting danger, even if the initial conduct was innocent.

• A defendant who undertakes aid must act with reasonable care. Liability may follow if the undertaking increases the danger or the injured person reasonably relies on it.

• A defendant with control over a dangerous person, instrumentality, or premises may have a duty to exercise reasonable care. Control matters because it supplies the practical ability to prevent the harm.

The duty may be limited to reasonable precautions; it does not make the defendant an insurer. If a supplied rule identifies a relationship, undertaking, creation of risk, or control as an exception, connect the omission to that exact language.

The Risk-Reasonable Actor: Conduct Measured Without Sympathy

The ordinary standard is the conduct of a reasonable person under like circumstances. It is objective. The defendant’s good intentions, carelessness about the danger, or belief that precautions were unnecessary does not answer the question. Ask what a reasonable actor would have done knowing the facts the defendant knew or reasonably should have known.

The standard adjusts for circumstances, not ordinary personal shortcomings:

• A person with a physical disability is judged against a reasonable person with the same disability. The disability does not excuse avoidable conduct, but the comparison must be fair.

• A child is ordinarily judged against a reasonable child of similar age, intelligence, and experience. A child engaged in a dangerous adult activity is generally judged by the adult standard.

• A professional must use the care and competence reasonably expected of a competent professional in the same field under comparable circumstances. Training, specialty, and relevant professional knowledge matter.

• In a sudden emergency not created by the defendant, the question is what a reasonable person would do under that emergency’s pressure and limited choices.

• A defendant’s superior knowledge is part of the circumstances. If the defendant actually knew of a hidden defect or possessed specialized knowledge, reasonable care is measured with that information in view.

Mental deficiency, ordinary inexperience, and poor judgment ordinarily do not lower the objective standard. Custom may inform what reasonable care required, but it does not automatically decide breach.

Proof of Breach: Four Routes from Facts to Unreasonable Risk

A plaintiff may prove breach directly through testimony, documents, photographs, or ordinary inference. Four recurring proof routes deserve separate treatment because each asks a different question.

Negligence per se uses a statute or regulation as the standard of conduct. Check whether the plaintiff belongs to the class the enactment protects and whether the injury is the type it seeks to prevent. A violation may establish breach if the jurisdiction treats those conditions as negligence per se. A recognized excuse-such as inability to comply despite reasonable efforts-may defeat the inference. If the enactment does not fit, the violation may still be evidence of unreasonable conduct, depending on the supplied law.

Custom is evidence of what people ordinarily do in similar circumstances. A defendant’s compliance with custom helps the defense but does not end the inquiry; an entire community may practice an unsafe method. A departure from custom helps the plaintiff but does not itself prove breach if the custom is irrelevant or the circumstances differ.

Industry practice focuses on a trade, profession, or specialized activity. It is especially useful when the question supplies evidence of professional methods, safety procedures, or inspection routines. Industry practice remains evidence, not an automatic safe harbor. The reasonable-person or professional standard controls.

Res ipsa loquitur permits an inference when the event is the kind that ordinarily does not occur without negligence, the instrumentality was under the defendant’s relevant control when negligence likely occurred, and the plaintiff did not cause the event. “Exclusive control” does not always mean the defendant physically held the object at the instant of injury. Responsibility for the instrumentality and control during the period when negligence probably occurred may suffice. The plaintiff need not eliminate every imaginable alternative explanation. The inference may get the case to the factfinder, but the factfinder may reject it.

A supplied rule should be read mechanically: identify the required conditions, identify any qualification such as “unless,” and match each fact. The following item demonstrates that process.

A plaintiff may rely on res ipsa loquitur only if:

(1) the event is a kind that ordinarily does not occur without negligence;

(2) the instrumentality causing harm was in the defendant’s exclusive control when the negligence likely occurred; and

(3) the plaintiff did not contribute to the event.

Exclusive control exists when the defendant had responsibility for the instrumentality, even if another person performed work on it, unless evidence shows a specific alternative cause outside the defendant’s responsibility. The plaintiff need not exclude every possible alternative explanation.

A ceiling light fixture in a restaurant fell onto Priya while she was seated at a table. The restaurant owner had hired an electrician to install the fixture six months earlier. Since installation, the restaurant’s maintenance staff had inspected the fixture weekly, and no one else had touched it. Priya had not interacted with the fixture. There was no storm, power surge, or other identified event. Priya cannot identify the specific defect or negligent act that caused the fixture to fall.

A driver negligently turns into a pedestrian, who suffers panic but no bodily injury. The pedestrian was not struck and witnessed no injury to another person.

Answer: NIED may be available under a zone-of-danger theory because the pedestrian was threatened with physical harm by the defendant's negligent conduct, though the jurisdiction's requirements for serious emotional distress and any physical manifestation must be satisfied.

Cause and Interruption: From But-For Event to Foreseeable Harm

Causation has two separate questions. Actual cause asks whether the harm would have occurred without the defendant’s breach. If removing the breach changes the result, the breach is a but-for cause. If two independent forces each would have been sufficient to cause the harm, each may qualify as an actual cause even though neither is individually necessary.

Proximate cause asks whether the harm is sufficiently connected to the breach for liability. The central inquiry is whether the injury resulted from a risk that made the conduct unreasonable. The exact sequence or precise mechanism need not be foreseeable if the general type of harm falls within the foreseeable-risk range.

An intervening cause occurs after the defendant’s conduct and contributes to the injury. It does not automatically sever liability. Ordinary negligence, foreseeable medical complications, reasonable rescue efforts, and normal reactions to danger are commonly foreseeable responses. An intervening act becomes superseding when it is so extraordinary and unforeseeable, in light of the original risk, that it breaks legal causation.

Intentional or criminal conduct is often treated as superseding, but not when the defendant’s negligence created the setting or relationship that made such conduct foreseeable. For example, inadequate security may make criminal intrusion the very risk requiring precautions. A special relationship or control over the actor can also make the intervention foreseeable. By contrast, an extraordinary intentional act unrelated to the danger may terminate liability.

Plaintiff conduct can be an intervening cause, but do not use that label automatically. Ordinary inattentiveness after a defendant creates danger may be comparative negligence. An extraordinary, unforeseeable decision may be superseding. Ask first whether the plaintiff’s conduct was a foreseeable response to the danger, then ask whether the jurisdiction treats the conduct as plaintiff fault or as a break in causation.

Once the general injury type is foreseeable, an unusual vulnerability ordinarily does not sever causation merely because the resulting injury is more severe than expected. Keep the sequence distinct:

Loading diagram…

Plaintiff-Conduct Defenses: Fault and Voluntary Risk

Run plaintiff-conduct defenses after identifying duty, breach, and causation. They reduce or defeat liability; they do not answer whether the defendant’s conduct caused the injury.

Comparative negligence asks whether the plaintiff failed to use reasonable care for personal safety and whether that failure contributed to the harm. The applicable jurisdiction may use pure comparative negligence or a modified system that bars recovery when plaintiff fault reaches a stated threshold. Use the supplied rule for the allocation method and threshold. A plaintiff’s unreasonable failure to heed a visible warning, use available safety equipment, or avoid a known danger is classic comparative negligence.

Assumption of risk asks a different question. Express assumption rests on an agreement accepting a defined risk, subject to the supplied law’s requirements and any enforceability limitation. Implied assumption requires that the plaintiff actually knew of the particular risk, appreciated its character, and voluntarily encountered it. Mere awareness that an activity is generally dangerous is insufficient. Nor is ordinary carelessness enough.

Keep the defenses separate:

• Comparative negligence is principally an objective failure to act reasonably and generally reduces recovery according to the jurisdiction’s method.

• Implied assumption of risk is subjective consent to a known, appreciated, and voluntarily encountered danger and may operate as a complete defense where the supplied rule says so.

A plaintiff may have acted unreasonably without knowingly consenting to the risk, or may knowingly accept a risk that the defendant nevertheless increased through a separate negligent act. If the plaintiff’s conduct instead was an extraordinary event after the breach, analyze proximate cause before assigning comparative fault.

Premises and Relational Losses: Entrants Feelings and Finances

For land conditions, begin with entrant status, then ask what the possessor knew or should have known, whether the condition was concealed and dangerous, what warning or repair was reasonable, and whether the entrant’s conduct affects recovery.

• A trespasser generally receives no duty of reasonable inspection or warning for ordinary conditions. The possessor must not intentionally or wantonly injure the trespasser. A known pattern of trespassing or a dangerous artificial condition may trigger additional duties under the supplied law.

• A licensee, such as a social guest, is permitted to enter for the licensee’s purposes. The possessor generally must warn of known concealed dangerous conditions the licensee is unlikely to discover and must use reasonable care in active conduct. The possessor ordinarily has no general duty to inspect for unknown defects.

• An invitee enters for a business or public purpose. The possessor must use reasonable care to inspect for, discover, repair, or warn of dangerous conditions that create foreseeable risk. A business visitor’s status does not make the possessor an insurer; reasonable precautions remain the test.

• A child trespasser may receive protection under the attractive-nuisance doctrine when an artificial condition creates a serious risk, children are likely to trespass, the child cannot appreciate the danger, and reasonable protection is justified in light of the burden and risk. Apply each supplied condition rather than assuming every attractive object qualifies.

For any entrant, distinguish a dangerous condition of land from the possessor’s active conduct. A warning may satisfy reasonable care for one known hazard but not for an obvious danger the entrant could reasonably avoid, depending on the jurisdictional rule.

Negligent infliction of emotional distress requires careful gatekeeping because jurisdictions vary. Start with the supplied authority. A direct victim may need bodily injury, physical impact, presence in a zone of danger, reasonable fear for personal safety, or serious emotional distress under the applicable rule. A bystander claim commonly requires a close relationship to the injured person, contemporaneous perception of the event or its immediate aftermath, and serious emotional distress. Some jurisdictions recognize additional relationships or physical manifestations. Ordinary fright, disappointment, or grief without the required connection is not enough.

Ask whether the plaintiff was endangered personally, witnessed the injury as it occurred, or falls within a specially protected relationship. Do not convert every negligent accident causing upset into NIED. The emotional-distress gate is separate from proving that the defendant acted negligently.

A negligence claim for pure economic loss generally does not permit recovery for financial loss standing alone when there is no personal injury or property damage. The gate is different when the financial loss follows injury to the plaintiff or damage to the plaintiff’s property. A supplied authority may also recognize a duty based on a special relationship, a professional undertaking, or a specific statutory rule. Do not assume that foreseeable financial harm alone creates a negligence duty. If the alleged loss arises from inaccurate information supplied for a transaction, use the authority governing that information-based claim rather than silently treating it as ordinary negligence.

High-Yield Points - ⚡ Biggest Takeaways

Unstarred negligence permits supplied law, but you must recognize the issue and find operative language quickly. No general rescue duty becomes actionable through relationships, undertakings, created risks, or control. Proximate cause follows foreseeable risks, not every consequence of negligent conduct. Comparative negligence measures unreasonable plaintiff conduct, while assumption of risk requires knowing voluntary consent. Premises status and relational-loss gates determine which negligence duty reaches the plaintiff.