A common type of tort claim in which the plaintiff alleges that due to defendant’s careless and unreasonable actions, plaintiff sustained injuries.  In order to prove negligence, a plaintiff must present evidence to support all of the following elements:

  1. Duty;
  2. Breach of Duty;
  3. Causation; and
  4. Damages.

Reference Desk:

AMOCO Chemical Corp. v. Hill, 318 A.2d 614, 617-18 (Del. 1974).

Negligence is generally defined under the law of this State as the want of ordinary care: That is, the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Negligence is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

Negligence is conduct that falls below the standard established by the laws for the protection of others against unreasonable risk of harm. Negligent conduct may include an act that the actor as a reasonable person should realize as involving an unreasonable risk of causing harm to another or the actor’s failure to take an act which a reasonable person under a duty to do so would take.

The elements of negligence are: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. The threshold inquiry in a negligence case is duty. The plaintiff must establish both the existence and the violation of a duty owed to the plaintiff by the defendant to establish liability in tort. Moreover, the existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question.

In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Of all these factors, foreseeability of the risk is the foremost and dominant consideration.

The two elements of “proximate cause” are cause in fact (or substantial factor) and foreseeability. These elements cannot be satisfied by mere conjecture, guess, or speculation. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. In Lear Siegler, Inc. v. Perez,the court found the Restatement (Second) of Torts to be instructive on this point:

In order to be [the proximate cause] of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent…. [T]his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff’s harm.

819 S.W.2d 470, 472 (Tex.1991) (quoting RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965)). Accordingly, cause in fact is not established where the defendant’s negligence does no more than furnish a condition which makes the injuries possible. In other words, the conduct of the defendant may be too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing about the harm.

On several occasions, courts have addressed attenuation of the causal connection between conduct and liability. See, e.g., Union Pump, 898 S.W.2d 773; Lear Siegler, 819 S.W.2d 470; Bell, 434 S.W.2d 117. In Bell, three individuals were hit by a car while removing debris from an earlier car accident. 434 S.W.2d at 118. Two of the men were killed, and the third suffered serious injuries. Id. The court held that the initial accident was not the proximate cause of the deaths and injuries because it only created the condition that attracted the three men to the scene and did not actively contribute to the injuries resulting from the second accident. Id. at 122. Where the initial act of negligence was not the active and efficient cause of plaintiffs’ injuries, but merely created the condition by which the second act of negligence could occur, the resulting harm is too attenuated from the defendants’ conduct to constitute the cause in fact of plaintiffs’ injuries. See id.

In Lear Siegler, Rafael Perez, while working for the Texas Highway Department, pulled a flashing arrow sign behind a sweeping operation to warn drivers about ongoing highway maintenance. Id. at 471. Perez stopped his truck when the sign malfunctioned, and a van driven by Alfonso Lerma, who had fallen asleep at the wheel, struck the sign which in turn struck Perez, causing severe injuries from which Perez later died. Id. The legal representatives of Perez’s estate claimed that Lear Siegler manufactured a defective sign which proximately caused Perez’s injuries. Id. The court determined that, as a matter of law, the circumstances of the accident were too remotely connected with Lear Siegler’s conduct to constitute the proximate cause of Perez’s death. Id. at 472. While acknowledging that a defendant’s negligence may expose another to an increased risk of harm by placing him in a particular place at a given time, the court recognized that the “happenstance of place and time” may be too attenuated for liability to be imposed under the common law. Id.

In Union Pump, a pump caught fire at a Texaco Chemical Company facility. 898 S.W.2d at 774. Sue Allbritton, an employee of Texaco, assisted in extinguishing the fire. Id. Two hours after the fire was abated, Allbritton and a fellow employee went to block a nitrogen purge 800*800 valve at the request of their employers. Id. Upon reaching the valve, they were informed that it was not necessary to block the valve. Id. As the two of them returned from the purge valve, they walked over a pipe rack, which was still wet from the efforts to extinguish the fire, and Albritton fell and was injured. Id. She alleged that Union Pump caused her injuries by manufacturing a defective pump which caused the fire, which in turn led to the pipe rack being wet and slippery, and ultimately caused her injuries. Id. The court held that the circumstances surrounding her injuries were too remotely connected with the defective pump to constitute the cause in fact of her injuries. Id. at 776. The pump, by causing a fire, did no more than create the condition which made the plaintiff’s injuries possible.Id. Thus, merely creating the condition that makes harm possible falls short as a matter of law of satisfying the substantial factor test.

Encyclopedia Britannica, 11th Edition (1910-1911).

NEGLIGENCE (Lat. negligentia, from negligere, to neglect, literally ” not to pick up “), a ground of civil law liability, and in criminal law an element in several offences, the most conspicuous of which is manslaughter by negligence. In order to establish civil liability on the ground of negligence, three things must be proved—a duty to take care, the absence of due care, and actual damage caused directly by the absence of due care. Mere carelessness gives no right of action unless the person injured can show that there was a legal duty to take care. The duty may be to the public in general, on the ground that any person who does anything which may involve risk to the public is bound to take due care to avoid the risk. For instance, in the words of Lord Blackburn, ” those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision.” Where a special duty to an individual is alleged, the duty must rest on a contract or undertaking or some similar specific ground. Thus, where a surveyor has carelessly given incorrect progress certificates, and a mortgagee who has had no contractual relation with the surveyor has advanced money on the faith of the certificate, the surveyor is not liable to the mortgagee in an action of negligence; because he owed no duty to the mortgagee to be careful. When a duty to take care is established, the degree of care required is now determined by a well-ascertained standard. This standard is the amount of care which would be exercised in the circumstances by an ” average reasonable man.” This objective standard excludes consideration of the capacity or state of mind of the particular individual. It also gets rid of the old distinctions between ” gross,” ” ordinary ” and ” slight ” negligence, though no doubt the degree of care required varies with the circumstances of the case. The application of such a standard is a task for which a jury is a very appropriate tribunal. In fact the decision of the question whether there has been a want of due care is left almost unreservedly to the jury. There is this amount of control, that if the judge is of opinion that the evidence, if believed, cannot possibly be regarded as showing want of due care, or in technical language that there is ” no evidence of negligence,” it is his duty to withdraw the case from the jury and give judgment for the defendant. Unless the judge decides that there is no duty to take care, or that there is no evidence of want of care, the question of negligence or no negligence is wholly for the jury. Ordinarily a man is responsible only for his own negligence and for that of his servants and agents acting within the scope of their authority. For the acts or defaults of the servants of an independent contractor he is not liable. But in certain cases a stricter obligation is imposed on him by law. The occupier of premises is under a duty to all persons who go there on business which concerns him to see that the premises are in a reasonably safe condition so far as reasonable care and skill can make them so. Thus he cannot release himself by employing an in-dependent contractor to maintain or repair the premises. The effect of this doctrine is that the occupier may be liable if it can be ‘shown that the independent contractor or his servant has been guilty of a want of due care. A similar obligation has been enforced in the case of a wreck stranded in a navigable river, and the owner was held liable for damage caused by the carelessness of the servant of an independent contractor who had under-taken to light the wreck. So too any person who undertakes a work likely to cause danger if due care is not taken is liable for damage caused by the carelessness of the servant of an independent contractor, so long as the carelessness is not casual or collateral to the servant’s employment. In an action of negligence a familiar defence is ” contributory’ negligence.” This is a rather misleading expression. It is not a sufficient defence to show that the plaintiff was negligent, and that his negligence contributed to the harm complained of. The plaintiff’s negligence will not disentitle him to recover unless it is such that without it the misfortune would not have happened, nor if the defendant might by the exercise of reasonable care on his part have avoided the consequences of the plaintiff’s negligence. The shortest and plainest way of expressing this rule is, that the plaintiff’s negligence is no defence unless it was the proximate or decisive cause of the injury. There was an attempt in recent times to extend this doctrine so as to make the contributory negligence of a third person a defence, in cases where the plaintiff, though not negligent himself, was travelling in a vehicle or vessel managed by the negligent third person, or was otherwise under his control. In such circumstances it was said that the plaintiff was ” identified ” with the third person. (Waite v. North-Eastern Ry. Co., 1858, E. B. & E., 719). This case, in the Exchequer Chamber, was an action on behalf of an infant by his next friend. The infant, which was five years of age, was with its grandmother, who took a half-ticket for the child and a ticket for herself to travel by the defendants’ line; as they were crossing the railway to be ready for the train the child was injured by a passing train. The jury found that the defendants were guilty of negligence, and that the grandmother was guilty of negligence which contributed to the accident, while there was no negligence of the infant plaintiff. A verdict was entered for the plaintiff, but in the Queen’s Bench the verdict was entered for the defendants, without calling on them to argue, on the ground that the infant was identified with its grandmother. But the case of the “Bernina,” decided in 1888, where a passenger and an engineer on board the “Bushire ” were killed in a collision between the ” Bernina ” and the ” Bushire ” caused by fault in both ships,but without fault on the part of the deceased, exploded this supposed doctrine, and made it clear that the defence of contributory negligence holds good only when the defendant contends and proves that the plaintiff was injured by his own carelessness. The American law of negligence is founded on the English common law; but the decisions in different states have occasion-ally contradicted English decisions, and also one another. See T. Beven, Negligence in Law, 3rd ed., 1908; Shearman and Redfield, The Law of Negligence (New York), Thompson, Commentaries on Negligence (Indianapolis). (A. LL. D.)

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