The Reasonable Person Standard
Negligence asks whether the defendant acted as a reasonably prudent person would under similar circumstances. It does not require bad intent; careless conduct is enough. Professionals such as doctors and lawyers are held to the standard of a reasonably careful member of their profession, which is why malpractice cases usually require expert testimony.
The Four Elements
1. Duty
The defendant must have owed the plaintiff a legal duty of care. Everyone generally owes a duty to avoid creating unreasonable risks of physical harm to others. Special duties arise in particular relationships — for example, businesses owe duties to customers on their premises.
2. Breach
The defendant failed to meet the required standard. Courts consider:
- How likely the harm was
- How serious the potential harm was
- How burdensome it would have been to take precautions
- Industry customs and safety rules
3. Causation
Two kinds of causation are required:
- Actual cause (cause in fact): The harm would not have happened "but for" the defendant's conduct.
- Proximate cause (legal cause): The harm was a reasonably foreseeable result of the conduct, not something too remote or bizarre.
4. Damages
The plaintiff must have suffered actual harm, such as physical injury, property damage, or financial loss. A near miss with no harm does not support a negligence claim.
Negligence Per Se
When a defendant violates a safety law designed to protect people like the plaintiff from the kind of harm that occurred, many states treat the violation as automatically establishing breach (negligence per se), or as strong evidence of negligence. Examples include running a red light, speeding, or violating a building code.
Res Ipsa Loquitur
Latin for "the thing speaks for itself," this doctrine lets a jury infer negligence when:
- The accident would not normally happen without negligence
- The thing that caused the harm was under the defendant's control
- The plaintiff did not contribute to the cause
Classic examples include a surgical instrument left inside a patient or a barrel falling from a warehouse window.
Special Situations
| Situation | Typical rule |
|---|---|
| Premises liability | Property owners must keep premises reasonably safe for lawful visitors; duties vary by visitor status in many states |
| Medical malpractice | Breach of the professional standard of care, usually proven by expert testimony; many states have special procedures and damage caps |
| Employer liability | Under respondeat superior, employers are generally liable for employees' negligence within the scope of employment |
| Negligent hiring or supervision | Employers may be directly liable for careless hiring or supervision |
When the Plaintiff Is Also at Fault
| Rule | Effect |
|---|---|
| Pure comparative negligence | Recovery is reduced by the plaintiff's percentage of fault, even if over 50% |
| Modified comparative negligence (50% or 51% bar) | Recovery is reduced by fault, but barred if the plaintiff's fault reaches the state's threshold |
| Contributory negligence | Any fault by the plaintiff bars recovery; followed only in a handful of jurisdictions |
Common Defenses
- No duty was owed to the plaintiff
- The defendant acted reasonably
- The plaintiff's own negligence caused or contributed to the harm
- Assumption of risk, where the plaintiff knowingly accepted a specific risk
- The claim was filed after the statute of limitations expired
- Immunity, which can protect some government entities or officials
Gross Negligence vs. Ordinary Negligence
Gross negligence is an extreme departure from ordinary care, showing reckless disregard for others' safety. It can matter because some states allow punitive damages for gross negligence, and some liability waivers cannot excuse it.
