The most common tort claim is based on the negligence of the defendant. In
each negligence claim, the plaintiff must establish by a preponderance of the
evidence that (1) the defendant had a duty of due care, (2) the defendant
breached that duty, (3) that the breach of duty both actually and
approximately has caused harm to the plaintiff, and (4) that the harm is
measurable in money damages.
It is also possible for the negligence of one person to be imputed to another,
as in the case of respondeat superior, or in the case of someone who loans
his automobile to another driver who is negligent and causes injury. There
are many excuses (defenses) to claims of negligence, including assumption
of risk and comparative negligence. In those few jurisdictions where
contributory negligence has not been modified to comparative negligence,
plaintiffs whose negligence contributes to their own injuries will be barred
from any recovery.
E X E R C I S E S
1. Explain the difference between comparative negligence and
contributory negligence.
2. How is actual cause different from probable cause?
3. What is an example of assumption of risk?
4. How does res ipsa loquitur help a plaintiff establish a case of negligence?
