Book Opener

Figure 4.2ElementLegal dutyBreach of dutyProximate causeActual harmThe Elements of NegligenceDefinitionA determination that legal duty exists between parties must be madeto establish liability through negligence. This is solely a question ofwhether the tortfeasor should have reasonably foreseen a risk ofharm to the injured party.The judge or the jury must determine whether the person accused ofnegligence has breached the duty owed to the victim. To determine ifthe alleged tortfeasor has met the appropriate standard of care, thecourt uses the reasonable person test.For the tortfeasor to be held liable, the unreasonable conduct mustbe the proximate cause of the victim’s injuries. Proximate cause is thelegal connection between the unreasonable conduct and the resultingharm.The injured party in a lawsuit for negligence must show that actualharm was suffered.NEGLIGENCENegligence is the failureto exercise thedegree of care that areasonable personwould have exercisedin the same circumstances.A suit fornegligence mustprove four elements:duty of care, breachof duty, proximatecause, and actualharm. Which of theelements do youbelieve would be themost difficult to provein a lawsuit?correct. However, she is also correct in pointing out that Trai’sreckless driving is very stupid.Defenses to NegligencePeople can defend themselves in anegligence suit by eliminating one ofthe four elements (see Figure 4.2).Specifically, they can argue that theyowed no duty to the plaintiff; their conductconformed to the reasonable personstandard; their conduct was not theproximate cause of the plaintiff’sinjuries; or that the plaintiff suffered noinjuries. In cases in which the defendantscannot attack one of these elements,they may try to use one of thefollowing defenses: contributory negligence,comparative negligence, orassumption of risk.Contributory Negligence Behavior by the plaintiffthat helps cause his or her injuries may fall under the doctrineof contributory negligence . If the defendant canprove that the plaintiff’s own negligence helped cause theinjuries, then the plaintiff loses the lawsuit. It does notmatter how slight his or her negligence was. Many statesDEFENSES TO NEGLIGENCEMany individuals engage in very riskysports as a matter of routine. Whatdefense might the defendant in sucha negligence case have if one of theparticipants in a dangerous sportwere injured?Chapter 4: The Law of Torts 91