Paralegal Essentials – Tort Law (Part 5 – Negligence)

In evaluating a set of facts for negligence, it is important to remember that plaintiff must establish ALL of the following elements of the tort of negligence to prove liability and be awarded damages:

  • Duty – The defendant must have a duty to use reasonable care under the circumstances.
  • Breach of Duty – the defendant must have failed to use reasonable care under the circumstances (breaching the duty of care)
  • Causation – Plaintiff must establish that the defendant’ s conduct (in breaching the duty) was a substantial factor in bringing about plaintiff’s damages.  An important factor to consider in evaluating causation is foreseeability.  The defendant must have been able to reasonably foresee damage/injury to plaintiff.
  • Damages – Plaintiff must have damages to recover for negligence.  No damages are assumed no matter how egregious the conduct.

As stated above, all 4 elements must be established through the facts before there can be recovery for damages.  Once the prima facie case of negligence is established, defendant can raise available affirmative defenses.

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