Negligence occurs when there is a breach of a duty of care that occurs with factual and proximate cause and

creates damages. Each of these elements must be present for a valid negligence claim. Even if all the elements are present there are several defenses to negligence that can reduce the culpability of and judgment against the defendent.

DUTY
Nonfeosance (failure to act): Generally, individuals have no duty to act to help another in distress. Since the law typically does not tell individuals to take specific actions, it does not favor punishing individuals for inaction. However, there are three major exceptions: Special relationship exception: A duty to act may be present when there is a special relationship between the parties, such as: familial relationships (e.g., parent and child); landowners and their invitees; shopkeepers and their customers; and schools and their students. However, even when a special relationship is present, there is only a dUty to take reasonable action. If taking action would endanger the 'defendant, there is generally no duty to act. Undertaking exception: Even when a duty to act would not normally exist, once a defendant takes certain acts, a duty may be created. This generally happens when the defendant's acts cause the victim to rely on the defendant's assistance.

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Creation of peril exception: When a defendant negligently places the plaintiff in peril, the defendant has an affirmative duty to take reasonable action to remove the plaintiff from that peril.

Misfeasance (acting negligentlyl: The defendant has taken some kind of negligent action that 'has caused another harm. The majority view is that the defendant only owes a duty toward a victim who was in the foreseeable zone of danger. The minority view is that a duty exists toward anyone in the direct path of negligence and all victims of negligence are in the foreseeable zone.

The drowning victim

Dave falls into a lake and begins drowning. Alexis notices that Dave is drowning but decides not to help or call for help. Alexis is an expert swimmer and has a cell phone that could be used to alert rescuers. There is a life preserver attached to a long rope lying on the ground in front of Alexis. Alexis would not be in any danger if she assists Dave. Alexis walks away and Dave subsequently drowns. Did Alexis have a duty to act?

Duty of landowners: Whether a landowner owes a duty to a person injured on his or her land depends on the legal status of the victim. There are three major legal classifications of status: Trespasser: An individual who is on the owner's land without permission. Generally, a landowner owes no duty to trespassers that are injured on his or her land. However, there are two major exceptions: Discovered trespasser exception: A duty may exist when the landowner knows about or could reasonably predict the trespasser's presence. Some jurisdictions consider the discovered trespasser a licensee, Other jurisdictions assign the landowner a duty to warn the discovered trespasser or make safe any known artificial conditions that could seriously harm the trespasser. Children exception: A landowner awes a child trespasser a dUty of care when the landowner knows that children are likely to trespass and that a condition exists on the land that the child does not realize is dangerous. When there is an attractive nuisance (something on the land that is particular1yinviting to children), the landowner owes an even greater duty to a child trespasser. Generally, the landowner has a duty to correct the attractive nuisance. The landowner can be held liable even if the child is hurt on the land by something other than the object that attracted him or her to it. licensee: An individual who is on the land with permission, but is not there for the landowner's benefit (e.g., social guests). This also includes a guest that is invited out of economic motives (e.g., trying to impress the boss to get a raise) or that provides an incidental service. The landowner has a duty to warn the licensee of or make safe any known natural or artificial conditions that could harm the licensee. The landowner does not have a duty to inspect the premises for dangerous conditions. tnvitee: An individual who is on the land with permission and for a purpose connected with the use of the premises (e.g., business customer, hospital visitor, or museum visitor). However, the individual is only considered an invitee while in areas of the land held open for the purpose of the visit. Nonbusiness hours can change the legal status of the individual. The landowner has a duty to warn the invitee of or make safe aI/ known natural or artificial conditions that could harm the invitee. The landowner also has a duty to inspect the premises for dangerous conditions.

Who are foreseeable plaintiffs?

The landmark case regarding foreseeability was Palsgraf v. Long Island Railroad Co.,1928,248 N.Y. 339. Inthis case. a passenger was standing on a train platform. Employees of the train company knocked a package out of the passenger's arms that fell and exploded, causing some scales, which were several feet away, to overturn and injure the plaintiff. The majority view held that although the defendant's conduct was negligent. there was no liability because it was not foreseeable that the plaintiff would have been injured. The dissent argued that the defendant should have been liable because 'when an act unreason, ably threatens the safety of others. the wrongdoer is liable for all proximate consequences regardless of whether they are unforeseeable or unexpected: Today, most cases adhere to the majority view, although the dissent is often cited in arguments and policy discussions. Proving negligence: The plaintiff has the burden to prove that the defendant's conduct fell below the standard of care required. The plaintiff can use documentary (e.g., videotape of accident) and direct (e.g., eyewitness testimony) evidence. Custom can be used as evidence, but it can not be conclusive on its own. There is one major exception to the general rule, the res ipsa loquitur doctrine, which is used when the plaintiff cannot determine precisely what the defendant did wrong. Requirements for res ipsa loquitur ("the thing speoks for itself"): There are three main conditions that must be met. It must be highly probable that the injury would not have occurred without a negligent act. The instrument of harm must be in the exclusive control of the defendant. The plaintiff or a third party must not have contributed to the plaintiff's injuries. Consequences of res ipsa loquitur: Generally, res ipsa loquitur creates an inference that the defendant was negligent, and the jury may accept or reject this inference. However, in a minority of jurisdictions, res ipsa loquitur shifts the burden of proof to the defendant. T.hen, if the defendant submits evidence sufficient to support a finding of fact in his or her favor, the burden shifts back to the plaintiff to prove negligence.

BREACH
To determine whether a duty of care has been breached (violated!. it is vital to establish what standard af care was required. It is important to understand what proof can be used to demonstrate that the defendant's conduct did not meet that standard of care.

FACTUAL ("BUT FOR") CAUSATION

To support a claim of negligence, the plaintiff must show a causal link between defendant's actions and plaintiff's injury. This is the "but for" test. where the factfinder must determine if 'but for' the negligence of the defendant, have been injured. the plaintiff would not

Scenario 1: Alexis and Dave are strangers. The ver'

dict: Alexis had no duty to act. It may seem morally reprehensible, but legally, Alexis was not required to lend assistance, even when it would have required minimal effort and would not have put her in any harm. Scenario 2: Alexis is Dave's mother. The verdict: Alexis probabty had a duty to act. This falls under the special relationship exception. Scenario 3: Alexis pushed Dave into the lake. The verdict: Alexis probably had a duty to act. This falls under the creation of peril exception. Since Alexis's acts contributed to Dave's harm, she owed him a duty. Scenario 4: Assume that instead of walking away. Alexis grabs the life preserver and throws it in the water. Dave sees the life preserver and attempts to move closer to it. Just as Dave is about to grab it Alexis pulls the life preserver back to shore before Dave can reach it. The verdict: Alexis probably had a duty to act. This falls under the undertaking exception. Once Alexis threw the life preserver toward Dave, he relied on her rescue attempt and she owed him a duty to continue her act. Duty to control another's actions: In very limited circumstances, a duty to control another's actions can exist. There must be both a special relationship between the parties and a foreseeable harm (e.g., assume Rick owns a car. Cheryl asks Rick to borrow his car. Cheryl is visibly drunk, but Rick gives her the keys and lets her borrow the car. Cheryl then hits pedestrian Jeff with Rick's car. The verdict: Rick could be found to owe a duty to Jeff because he had a special relationship with cheryl (auto-owner and driver), and it was foreseeable that Cheryl could cause harm to Jeff).

Standards of care: The general rule is the reasonabte person

standard-a defendant must act as a reasonable person would

have under the same or similarcircumstances. Thisstandard is rigid and no allowances are made forthe defendant's shortcomings (e.g., mental incompetence). Even if a defendant uses his or her best judgment, the defendant will be held to the standard of a reasonable person. There are several limited exceptions: Held to a lower standard Physical condition: Physical condition is taken into account when applying the reasonable person standard (e.g.. a blind person would be held to the standard of a reasonable blind person). Children: Children are held to the standard of a reasonable child of like age, intelligence, and experience. If the child is engaged in an adult activity (e.g., driving a car), the child is held to the regular reason~ble person standard. Held to a higher standard Professionals: Generally, professionals(e.g., doctors or lawyers) must exercise the same degree of care as an ordinary member of their profession. Many jurisdictions only compare the defendant to professionals in a like community. However, some jurisdictions hold professionals to a national standard. Possessing special knowledge/skills: Individuals with special knowledge (e.g., an expert sailor) are expected to use those skills and are held to a standard of a reasonable person with those special skills. Landowners: The standard of care that a landowner must exercise is.determined by the legal status of the victim as trespasser, licensee, or invitee. Negligence per se (as a matter of lawl: In limitedcircumstances (usually when the defendant has violated a statute), the court determines whether the defendant's actions were negligent and then instructs the jury. Courts generally find negligence per se when the violatedstatute is designedto both protect the kind of party that got injuredin the case (class of person) and prevent the type of harm that occurred(classof risk).

Multiple couses of injury: Sometimes, there is more than one

cause of injury to the plaintiff, where each one alone could have caused the injury. Under these circumstances, the substantial factor test is applied. If the defendant was a substantial factor in bringing about the injury, factual causation is present. In the case where there are multiple defendants involved (e.g., multiple pol/uters), the majority of jurisdictions allow joint and several liability. Each defendant can be charged separately and held responsible for 100 percent of the damages, so long as the plaintiff's total recovery does not exceed 100 percent. Alternotive liablity: In this case, there are multiple defendants, each of whom was negligent, but only one caused the injury. under these circumstances, the burden of proof is shifted to each defendant to prove that he or she was not the one to inflict the injury. If a defendant cannot meet this burden of proof, he or she will be held jointly or severally liable. Alternative liability only applies when aI/ the defendants acted negligently, and is not applicable if only one of the possible defendants is negligent.

PROXIMATE

CAUSATION

Once factual causation is established, proximate lor legal! cause must be found. Proximate cause tests whether liability is fair under the circumstances. It hinges on foreseeability of harm. Direct causes: If the plaintiff's injury is the direct result of the defendant's actions, proximate cause is typically found as long as the defendant could foresee the type of damage that resulted to the plaintiff. It is not necessary for the plaintiff to foresee the extent of damage. According to the eggshell skull doctrine. a plaintiff's pre-existing conditions do not lessen the defendant's responsibility (e.g., assume that Jer~my negligently