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Chapter 6: Negligence
Tort of Negligence: determines whether the defendant can be held liable for carelessly causing the
plaintiff to suffer a loss or injury. Example: investment broker gives bad advice, manufacturer produces a
drink that makes consumer sick, inaccurate report that leads to loss, etc
Plaintiff must prove that defendant:
-owed a duty of care, in that it was required to act carefully to the plaintiff
-breached the standard of care by acting carelessly
-cause harm to the plaintiff
Defendant may show that the plaintiff (in order to AVOID liability):
-was guilty of contributory negligence that caused or contributed to the injury
-voluntarily assumed the risk of being injured by the defendant
-was injured while engaged in some form of illegal behavior
Important Side Notes
1) The cause of action in negligence is flexible enough to reflect different types of situations. The
standard of care requires the defendant to act as a reasonable person would act in similar
circumstances. Therefore, “professional negligence” makes sense in the aspect that it refers to
the special considerations that shape the general cause of action in negligence when it is applied
to professional people.
2) The tension between the desire to provide compensation and the desire to encourage society
useful activities appears commonly in negligence because that cause of action is so flexible.
(Pregnant women does not owe a duty of care to unborn child but everyone else does)
Duty of Care
Duty of Care: exists if the defendant is required to use reasonable care to avoid injuring the plaintiff
Test for determining existence of Duty of Care:
Judge will ask whether or not the duty of care question has already been answered for the
particular types of case that is being litigated
If it has not, then it will be necessary to ask three questions:
-Was it reasonably foreseeable that the plaintiff could be injured by the defendant’s
-Did the parties share a relationship of sufficient proximity?
-If an injury was reasonably foreseeable, and if the parties shared a relationship of sufficient
proximity, then a duty of care presumably will exist. (Judge may deny a duty of care on the basis
of policy reasons)
-the test is objective, does not matter if defendant personally knew that its activities might injure the
plaintiff, it IS whether a reasonable person in the defendant’s position would have recognized that
-there must somehow be a close and direct connection between the parties.
-Must take into consideration: whether the parties shared a social relationship (friends, parents),
whether the parties shared a commercial relationship (business), whether there was a direct casual