# Tort of Negligence

### Elements of the Tort of Negligence

Negligence is a breach of a duty of care that results in damage. The elements of a negligence claim are duty, breach of duty, causation, and damages. If the party bringing the lawsuit meets the burden of proof to make an "on its face" case of negligence, then the defendant can either try to disprove the evidence or introduce new evidence.

Negligence is a civil wrong in which the defendant owed a duty, breached that duty, and caused the plaintiff harm. Negligence is an unintentional tort. A civil wrong is a private harm that a civil court—not a criminal court—will make a formal judgment about.

There are four elements of negligence.

First, for there to be negligence there must be the existence of a duty between the plaintiff and defendant. For example, if the relationship is doctor and patient, then the doctor owes the patient a duty of care to give appropriate treatment. If there is an auto accident, then each driver owes the other a duty of reasonable care.

Second, there must be a breach of that duty. Generally speaking, in determining whether there is such a breach, courts are guided by the reasonable person standard, which considers how a typically sensible individual would act in similar circumstances. In the auto accident example, if driver A rear-ends driver B, then a court will likely find that driver A breached the duty of care, meaning driver A is negligent.

Third, there must be causation. This means that the breach of duty must be the actual cause of the damage. For example, in the auto accident case, assume the driver is negligent, causing injury to another driver. That injured driver is then taken to the hospital, where they are taken into surgery and die during the procedure. It is important to examine whether the original accident is the cause of the death or if there are other causal factors. In this example, if the patient dies from anesthesia during the surgery, medical malpractice is more likely the cause of death, not the accident.

Finally, the negligence must cause some form of actual damages. Just as with other torts, if there are no damages, then there can be no negligence.

#### Elements of Negligence

The plaintiff bears the burden of proof to prove negligence by presenting evidence of the various elements. The defendant may then present evidence in defense.

### Contributory and Comparative Negligence

Contributory negligence means that if the party bringing the lawsuit even slightly contributed to the negligence that created the harm, then that party will get no compensation. Comparative negligence is a method of allocating damages when both parties share in the fault or negligence.

Business leaders should know that two possible defenses to a negligence lawsuit are contributory negligence and comparative negligence.

Contributory negligence is a rule that says that if a plaintiff is guilty of even a slight contribution to the negligence that created the harm, then the court will deny the plaintiff any compensation. This means that if a court found the defendant 99% at fault for an accident and the plaintiff 1% at fault, then the plaintiff would receive nothing. For example, if a jaywalker is hit by a speeding driver, the court could rule that the jaywalker is partly at fault, as staying on the curb rather than crossing midstreet would have prevented the accident from happening. Contributory negligence stems from the "last clear chance" doctrine, which states that the plaintiff had the ultimate (or last) opportunity to avoid the accident by not contributing.

Most jurisdictions, however, opt not to apply this rule because of its harsh consequences. Instead, they apply some variation of comparative negligence, which means that both parties are at fault to some degree—the fault is divided. The injured party gets some compensation, but the total is reduced by the amount that the injured party is at fault. For example, if a court found the defendant 90% at fault for an accident and the plaintiff 10% at fault and awarded $1,000 in damages, then the plaintiff would recover$900 from the defendant.

Generally, there are two types of comparative negligence. Pure comparative negligence reduces recovery by the plaintiff's percentage of fault. Modified comparative negligence varies by state but might prohibit the plaintiff from recovering if their percentage of liability is equal to or greater than the defendant's.

The concept of comparative negligence is generally considered to be a fairer and more equitable defense, as it more evenly recognizes the comparative liability of the parties involved, leading to a truer result.

### Contributory Negligence versus Comparative Negligence

Contributory Negligence Comparative Negligence
What is it? A rule stating that if a plaintiff even slightly contributed to the negligence that created the harm, then they have no right to any compensation A rule stating the fault for the negligence is shared by the injurer and the injured party; some compensation will be available
What if a court found the defendant 99% at fault for an accident and the plaintiff 1% at fault? Under this rule, the plaintiff would receive no compensation Under this rule, the plaintiff would receive $990 for each$1,000 of damages

There are two types of negligence in which the injured party is ruled to have had some part in the injury.