Next Article: Duty of Care – Negligence
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What is “Negligence”?
Negligence is unreasonable behavior that causes injury to another person or business.
Elements of Negligence
Five elements make up a claim for negligence:
- existence of a duty of care owed by the defendant to the plaintiff;
- unreasonable behavior by the defendant that breaches the duty of care;
- causation in fact;
- proximate causation; and
- an actual injury.
Discussion: What are the core differences between intentional torts to negligence actions? How does the existence of a duty to act reasonably compare to intentional activity with a specific mens rea attributable to the activity?
Practice Question: Luther is driving through a parking lot and listening to music through his headphones. He inadvertently runs into Sandra, who is walking through the parking lot. What type of legal action potentially exists in this scenario?
- Negligence is the failure to take proper care, and as a result that failure causes injury or damage to someone else. Four elements are required to establish a prima facie case of negligence;
- Duty. A duty is simply a legal obligation. In order to be used for negligence, the defendant must have owed the plaintiff a duty to care. See the explanation in Donoghue v Stevenson,  UKHL 100.
- Breach of the duty to care. There must be evidence that the defendant breached the duty to care by either acting contrary to how they were expected to act or an omission in that duty to care.
- Cause. That the defendant caused the breach of care that caused the harm to the plaintiff. There must be a connection between the defendant and the action.
- Harm/damages/injury. That the plaintiff suffered some injury or damages due to the breach of duty by the defendant.
Aronson, Mark I., Government Liability in Negligence (November 24, 2009). Melbourne University Law Review, Vol. 32, No. 44, 2008 ; UNSW Law Research Paper No. 2009-48. Available at SSRN: https://ssrn.com/abstract=1512452
Ooi, Vincent, Decisional and Operational Negligence (May 31, 2018). (2018) 34(4) Journal of Professional Negligence 171-189. Available at SSRN: https://ssrn.com/abstract=3221892
Simons, Kenneth W., Negligence. Social Philosophy and Policy, Vol. 16, No. 2, Summer 1999. Available at SSRN: https://ssrn.com/abstract=173855
Abraham, Kenneth S., The Trouble with Negligence (December 2000). UVA School of Law, Public Law Working Paper No. 00-13. Available at SSRN: https://ssrn.com/abstract=252064 or http://dx.doi.org/10.2139/ssrn.252064
Stremitzer, Alexander, Negligence-Based Proportional Liability: How More Lenient Sanctions Lead to Higher Compliance (April 1, 2012). UCLA School of Law, Law-Econ Research Paper No. 12-10. Available at SSRN: https://ssrn.com/abstract=2088977 or http://dx.doi.org/10.2139/ssrn.2088977
Goudkamp, James and Ihuoma, Melody, A Tour of the Tort of Negligence (2016). James Goudkamp and Melody Ihuoma, ‘A Tour of the Tort of Negligence’ (2016) 32 Professional Negligence 117; Oxford Legal Studies Research Paper No. 20/2016. Available at SSRN: https://ssrn.com/abstract=2755185