Module 3: Negligence
Negligence is the quintessential tort claim. While its four elements—duty, breach, causation and harm—must each individually be proven as with any other tort, the heart of the action will turn on a simple question: did the defendant do something unreasonable that harmed the plaintiff? In a small subset of cases, an affirmative answer will not lead to liability because the defendant owed no duty to that particular plaintiff or because the harm the plaintiff suffered was not proximately caused by the defendant. In another subset of cases, liability will not attach because the plaintiff’s conduct was also negligent to a level deemed meaningful in that jurisdiction, or the plaintiff and defendant may be forced to share the costs of the harm suffered. Finally, in some cases, the defendant’s wrongful conduct will be forgiven because of some immunity available to the defendant or some flaw in the plaintiff’s case, such as failure to file within the statute of limitations. The core question of culpability, however, will always return to whether the thing the defendant did, or failed to do, requires—or should require—that the defendant be held accountable to the plaintiff who suffered as a result.
As you have already learned, “reasonableness” is a standard, not a rule, and determining what is reasonable proves to be intricate, legally, however simple the inquiry may seem on the surface. Accordingly, most torts courses dedicate the bulk of the course to understanding how to analyze and prove the second prong of negligence: whether the defendant breached their duty of due care. Don’t be distracted by the use of the word “duty” in this common phrasing; duty analysis concerns whether a defendant owes any obligations to the plaintiff in question; breach analysis concerns what was reasonable to expect the defendant to do or refrain from doing under the circumstances. The third prong, causation, considers whether the particular conduct associated with the breach caused the plaintiff’s harm and the fourth requires the plaintiff prove harm did in fact occur. Note that if the defendant does breach their duty of care and the plaintiff is harmed but the breach is not the action that caused the harm, then the required “causal nexus”—the link in the chain of causation—is not present and the claim will fail. If a surgeon performs drunk but skillfully and, unrelatedly, the anesthesiologist makes an error that it was not the surgeon’s duty or capacity to prevent or detect, the patient cannot recover against the drunk surgeon. The breach of duty implicated by performing surgery drunk will not matter for the purposes of the plaintiff’s negligence claim since the anesthesiologist’s error “severs the chain of causation.”
Causation also includes an inquiry into proximate cause, which is essentially a policy determination that allows the factfinder to limit liability in certain kinds of cases. Each of these prongs involves further complexity, naturally, but it may be helpful at the outset to understand what the combined effect of the inquiries is meant to yield, namely, a legal conclusion about the reasonableness of the defendant’s actions and their materiality to the plaintiff’s harms.
In the hypotheticals that follow, you will be asked to focus on one aspect of a negligence claim to reinforce the general sense you are gaining of how each one operates. The material in the cases to come will, of course, teach you the proper tests for conducting the analysis pertaining to each element. This introduction is meant to illustrate how each element operates in isolation and to help prepare you for further study. It also may serve as a way for you to test your intuitions about the law against the existing legal rules to see where they converge or diverge.
Expand On Your Understanding – Drunken Surgeon Hypotheticals
In the hypotheticals that follow, you will be asked to focus on one aspect of a negligence claim to reinforce the general sense you are gaining of how each one operates. The material in the cases to come will, of course, teach you the proper tests for conducting the analysis pertaining to each element. This introduction is meant to illustrate how each element operates in isolation and to help prepare you for further study. It also may serve as a way for you to test your intuitions about the law against the existing legal rules to see where they converge or diverge. Turn each card to reveal the answer.