five element of negligence - OWEN.FINAL 11/14/2007 2:25:46...

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OWEN.FINAL 11/14/2007 2:25:46 PM 1671 Volume 35, No. 4 Summer 2007 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 , 1 negligence emerged as a distinct tort sometime during the middle of the nineteenth century. 2 The essence of the tort was that a person should be subject to liability for carelessly causing harm to another. 3 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. 4 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 Ideas , of which this is one, and to Karen Miller for research and editorial assistance. 1. 60 Mass. (6 Cush.) 292 (1850). 2. See Percy H. Winfield, The History of Negligence in the Law of Tort , 42 L.Q. REV. 184, 195-96 (1926). 3. See, e.g. , JAMES HENRY DEERING, THE LAW OF NEGLIGENCE § 1 (1886). 4. See, e.g. , DEERING, supra 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 (1896).
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OWEN.FINAL 11/14/2007 2:25:46 PM 1672 HOFSTRA LAW REVIEW [Vol. 35:1671 the plaintiff’s proximately resulting harm. 5 As negligence law proceeded to evolve, its elements were stated in a variety of ways, but most courts 6 and commentators 7 in time came to assert that it contains four elements. In perhaps its most conventional current iteration, negligence is formulated in terms of duty, breach, cause, and damage. 8 Yet, courts and commentators continue to disagree on what the four elements should contain, on just how the various ideas recognized as essential to negligence claims should be stuffed into the four pigeonholes. 9 Many courts frame the law of negligence within three elements—duty, breach, and proximately caused harm. 10 And at least one court has reduced the 5. See, e.g. , H. GERALD CHAPIN, HANDBOOK ON THE LAW OF TORTS § 105, at 501 (1917) ((1) duty, (2) breach, and (3) resulting injury); HALE, supra note 4, § 227, at 449 (1896) (“The essential elements of actionable negligence are: (a) Failure to exercise commensurate care, involving (b) A breach of duty, resulting proximately in (c) Damage to plaintiff.”). 6. Our review of recent supreme court decisions reveals four elements (sometimes listed
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This note was uploaded on 10/28/2011 for the course BUSINESS ACCT 305 taught by Professor Poletti during the Spring '09 term at DeVry Columbus North.

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five element of negligence - OWEN.FINAL 11/14/2007 2:25:46...

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