Negligence and Duty of Care

The elements in order

Negligence is not simply careless behavior. The plaintiff must establish a legally recognized duty, conduct below the applicable standard, factual cause, proximate cause and harm. State law can vary on particular doctrines, but the MBE expects a structured application of generally accepted principles and any rule supplied in the facts.

1. Duty: Was the plaintiff within a class foreseeably exposed to risk, and did the defendant owe a duty under the governing rule?
2. Breach: Did the defendant fail to act as a reasonable person would under the circumstances?
3. Factual cause: Would the harm have occurred but for the breach, or does a multiple-cause rule apply?
4. Proximate cause: Is the harm within the scope of the risks that made the conduct negligent, or did a superseding event cut off liability?
5. Damages: Did the plaintiff suffer legally cognizable injury? Then consider defenses and allocation of fault.

Duty and the reasonable person

The ordinary duty is to use reasonable care to avoid foreseeable risks of physical harm. The reasonable-person standard is objective and considers circumstances confronting the actor. Physical disability is generally considered as part of the circumstances, while a sudden, unforeseeable medical emergency may affect whether conduct is negligent. Children are commonly measured against a reasonable child of similar age, intelligence and experience, except when engaging in an adult activity.

Professional conduct is measured against the skill and knowledge of a reasonably competent member of the profession. A professional's error is not automatically negligence; the question is whether the conduct fell below the applicable standard and caused harm. Statutes may establish a standard of care when the plaintiff belongs to the protected class and suffers the kind of harm the law aims to prevent.

Breach and risk

Breach asks whether the defendant acted reasonably in light of the probability and seriousness of harm and the burden of precautions. A driver who looks at a phone while approaching a crowded crosswalk creates a greater risk than a driver on an empty, closed road. The factfinder compares the precautions available with the foreseeable risk, rather than treating an accident as proof of breach.

Res ipsa loquitur may permit an inference of negligence when the event ordinarily does not occur without negligence, the relevant instrumentality was within the defendant's control and the plaintiff did not contribute in a way that explains the event. It is an inference, not an automatic finding of liability.

Factual cause

The usual but-for test asks whether the injury would have occurred absent the breach. When multiple acts are each sufficient to cause the same harm, a substantial-factor formulation may apply. When two negligent actors combine to create an indivisible injury, both may be factual causes even if neither alone would have produced it.

Suppose a store negligently leaves liquid on a floor and a shopper slips. If the shopper would have fallen even with reasonable precautions because of an unrelated event, factual cause may fail. If the spill created the condition that led to the fall, the causal connection is stronger. Keep factual cause separate from whether the injury was foreseeable.

Proximate cause and intervening acts

Proximate cause limits liability to harms sufficiently connected to the risks that made the conduct negligent. A defendant need not predict the exact sequence or precise extent of harm, but an extraordinary event outside the foreseeable risk may be superseding. Ordinary rescue efforts, foreseeable medical negligence and reactions to danger commonly do not automatically break the chain.

A careless driver who injures a pedestrian may remain responsible for foreseeable medical complications. By contrast, a highly unusual independent event may raise a superseding-cause issue. Ask whether the later event was foreseeable and whether it was within the risk created by the original negligence, rather than assuming every intervening act cuts off liability.

Negligence per se

A safety statute can supply the standard of care if the plaintiff is within the class the statute protects and the injury is the type it seeks to prevent. A statutory violation may establish breach, subject to excuses such as incapacity, reasonable inability to comply or greater danger created by compliance. The violation does not by itself prove causation or damages.

Defenses and comparative fault

Contributory negligence can bar recovery under the traditional rule, while comparative-negligence systems reduce recovery according to the plaintiff's share of fault. Some systems bar recovery when the plaintiff reaches a specified percentage. Assumption of risk may apply when the plaintiff knowingly and voluntarily encounters a particular risk; its treatment may merge with comparative fault. Apply the rule supplied by the question instead of importing a jurisdiction's policy.

A plaintiff's failure to use reasonable care must relate to the injury. If the plaintiff's conduct did not contribute to the harm, it does not reduce recovery merely because it was imprudent in another respect.

Worked application

A grocery employee sees a broken jar, leaves the aisle open and walks away. Ten minutes later a customer slips on the liquid and fractures an ankle. Duty is ordinary care to customers. Leaving a known spill without warning or cleanup can be breach. The injury would likely not have occurred but for the spill, and a fall is within the risk that made the conduct careless. The fracture supplies harm. The store may argue the customer ignored a visible warning or was distracted, but the facts must support that defense.

For MBE questions, write a compact chain: risk, precaution, breach, causal link, scope of risk and harm. This helps prevent a vivid fact from replacing an element-by-element answer.

Duty is a legal question; breach applies it to conduct

The ordinary duty is reasonable care against foreseeable risks of physical harm. Duty asks whether the law recognizes an obligation to this plaintiff in these circumstances. Breach asks whether the defendant's conduct fell below that standard. A foreseeable injury can support the scope of a duty or risk analysis, but the plaintiff still must prove unreasonable conduct and causation.

A shop that invites customers to walk through an aisle generally must use reasonable care to address hazards it knows or should discover. A spill discovered moments before a fall may not give staff a reasonable opportunity to respond. A spill left through several inspections may support an inference that the shop failed to act reasonably. The same injury and premises rule produce different breach conclusions because notice and response time differ.

Reasonableness weighs risk and precaution

The factfinder evaluates probability and seriousness of harm against the burden and effectiveness of precautions. A driver approaching a school crossing faces a foreseeable risk to pedestrians and can reduce it by slowing down. A business that stores a highly flammable product near an ignition source faces a more serious potential loss than one storing a harmless item. The balancing principle helps organize facts; it is not a numerical formula that replaces the governing rule.

Industry custom can be evidence of reasonable care but does not necessarily set the legal standard. An entire industry may follow a careless practice, or a defendant may use a safer precaution that ordinary custom has not adopted. Statutory violation can establish or support negligence when the plaintiff is within the protected class and suffers the kind of harm the enactment aims to prevent, subject to recognized excuses and jurisdictional treatment.

Special standards change the comparison

A professional is generally compared with a reasonably competent member of that profession under the circumstances. A physician is not negligent merely because treatment failed; the issue is whether the professional departed from the applicable standard and caused injury. Expert testimony may be needed in real litigation, but an MBE question usually supplies facts that let you identify the standard and compare conduct.

Children are ordinarily measured against a reasonably careful child of similar age, intelligence and experience. When a child engages in an activity usually undertaken by adults and requiring adult-level care, an adult standard may apply. A child riding a motorized vehicle on a public road may trigger that exception; a child playing a game does not become an adult actor merely because the activity carries some risk.

Physical disability is considered as part of the circumstances confronting a reasonable person with that disability. A sudden, unforeseeable loss of consciousness may excuse conduct that would otherwise be careless, while a known risk of seizure calls for reasonable precautions. Do not confuse a permanent limitation, which informs the standard, with an unexpected emergency that may negate breach.

Res ipsa permits an inference, not automatic liability

Res ipsa loquitur can allow the factfinder to infer negligence when the event ordinarily does not happen without negligence, the relevant instrumentality was within the defendant's control, and the plaintiff did not cause the event. The plaintiff need not identify the precise careless act. The inference does not compel a verdict and may be weakened by evidence of another responsible cause.

A surgical sponge left inside a patient after an operation is an event that ordinarily implies negligence and the operating team had control during the relevant procedure. By contrast, a package falling from a crowded shelf in a store may have several possible causes and unknown handling by customers. The mere fact that an accident occurred does not invoke res ipsa; consider whether ordinary experience points to negligence by this defendant.

Factual cause and scope of liability are separate

But-for causation asks whether the injury would have happened absent the breach. When independent sufficient causes operate at the same time, a substantial-factor formulation may apply. When multiple negligent acts combine to produce one indivisible injury, more than one actor may be a factual cause. Do not use “substantial factor” as a substitute for analyzing the actual causal structure.

Proximate cause limits responsibility to harms within the scope of the risks that made the conduct negligent. If a delivery driver leaves a heavy box on a stair, a fall by a resident is a foreseeable kind of harm. If an unrelated earthquake causes the resident to fall at the same moment, the connection may be different. A sequence can be unexpected in detail while its general type of harm remains foreseeable.

An intervening act occurs after the defendant's conduct. It becomes superseding only when it is sufficiently unforeseeable or extraordinary to cut off liability under the governing approach. Negligent medical treatment following an injury is commonly foreseeable and does not ordinarily relieve the original tortfeasor. Intentional criminal conduct may be superseding in some settings, but not when the defendant's negligence created the very risk of that crime.

Damages and defenses complete the analysis

Negligence requires legally recognized harm. A careless act without injury generally does not produce compensatory damages in an ordinary negligence action. Once injury is shown, assess whether the plaintiff's own conduct was a factual and legal cause and apply the jurisdiction's comparative or contributory negligence rule if the question supplies one. Assumption of risk and other defenses should not be folded into breach.

For a concise answer, keep the chain visible: identify the duty, point to the precaution a reasonable actor would take, connect the breach to the injury, decide whether the type of harm falls within the risk, and address any defense. If one link fails, explain where. This prevents the common error of treating a bad outcome as proof of every negligence element.