The Five Fingers of Negligence
Think of this as a recitation to put at the beginning of your discussion as an outline. It answers nothing, but it can help organize your thinking by illuminating where the difficult issues are going to be.
1. The D owed P a legal duty.
A. Was D part of the class owed the duty?
B. Where does the duty come from?
C. Define the duty.
- Most commonly: a duty to the entire world to “exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances” – the famous Reasonable Person standard.
- Meaning something like: if you are a slob you must clean up your mess, but if people usually don’t, you don’t have to either.
2. D breached that duty by “negligence” = carelessness
A. If the breach was deliberate, then the tort is an intentional one.
B. If the breach was inadvertent – “he pushed me” – then you don’t have to clean up the mess.
C. If you acted the way a reasonable person would act, you didn’t breach the duty.
D. What intent is required?
3. P suffered “actual” damage: some injury resulted.
A. If you were a slob but no one was injured, the courts will NOT reprimand you (although your parents might), even though you are just as much at fault as the fellow who did cause an injury. The system is more concerned with making Ps whole than with punishing Ds.
B. Note that in criminal law, the rule is usually the opposite: if you try to shoot someone and miss, you are criminally liable for attempted murder usually with the same penalty as murder.
C. “He’s not really crying, he’s faking it”
4. Negligence was an “actual cause” of the injury.
A. The negligent act was a “but for” cause, meaning that “but for” the act, the injury would not have occurred.
B. Requires imagining an alternative world without the alleged negligence: would the injury have occurred in that alternative world?
C. “Even if I hadn’t ..., she would have been hurt”
5. Negligence was a “proximate cause” of the injury.
A. How tight was the causal connection? Tight enough for liability?
B. Proximate means immediate, closely tied.
C. Was the victim the sort of victim the negligence would have hurt?
D. “I wasn’t even close to him” or “all I did was ...”
--Oct '03