11/14/2007 2:25:46 PM
Volume 35, No. 4
THE FIVE ELEMENTS OF NEGLIGENCE
David G. Owen*
After centuries of glacial development in the English forms of
action, negligence law in America began to take shape during the 1830s
and 1840s as a general theory of liability for carelessly caused harm.
Conveniently (if roughly) dated to Chief Judge Shaw’s 1850 decision in
Brown v. Kendall
negligence emerged as a distinct tort sometime
during the middle of the nineteenth century.
The essence of the tort was
that a person should be subject to liability for carelessly causing harm to
Also essential to negligence, evident from an early date, was
the necessity of a causal connection between the defendant’s breach of
duty and the plaintiff’s damage that was natural, probable, proximate,
and not too remote.
As early courts and commentators explored the developing tort of
negligence, they increasingly divided it into its essential pieces—
“elements”—centered on a defendant’s failure to exercise due care and
Carolina Distinguished Professor of Law, University of South Carolina. Thanks to Aaron
Twerski for originating the idea of
, of which this is one, and to Karen Miller for research and
1. 60 Mass. (6 Cush.) 292 (1850).
Percy H. Winfield,
The History of Negligence in the Law of Tort
, 42 L.Q. REV. 184,
, JAMES HENRY DEERING, THE LAW OF NEGLIGENCE § 1 (1886).
note 3, § 1, at 27 (citing FRANCIS WHARTON, LAW OF
NEGLIGENCE § 3 (1874)); WILLIAM B. HALE, HANDBOOK ON THE LAW OF TORTS § 19, at 44