Torts: Negligence

Negligence is the workhorse of modern tort law and, for bar takers, the single most tested doctrine in the subject. The reason is simple: negligence turns on a disciplined, element-by-element analysis that rewards clear issue spotting and careful application of facts. Most exam problems are not trying to trick you with obscure rules. They are testing whether you can walk through duty, breach, causation, and damages in a structured way and reach a defensible conclusion.

At its core, negligence asks whether the defendant failed to exercise reasonable care under the circumstances, causing legally cognizable harm to the plaintiff. Every negligence claim rises or falls on four elements:

1. Duty
2. Breach
3. Causation (actual and proximate)
4. Damages

A strong analysis treats each element separately, states the governing standard, and applies the facts with attention to foreseeable risks and the scope of liability.

The Basic Framework: Duty, Breach, Causation, Damages

A useful habit is to treat negligence like a checklist. If an element is missing, the claim fails. If an element is contested, your job is to explain both sides and resolve the dispute.

• Duty asks whether the defendant owed the plaintiff a legal obligation of reasonable care.
• Breach asks whether the defendant’s conduct fell below the standard of care, usually that of a reasonable person.
• Causation asks whether the breach actually caused the harm and whether the law will hold the defendant responsible for that harm.
• Damages asks whether the plaintiff suffered an actual, compensable injury.

Duty: Who Owes Care to Whom?

The General Rule: Reasonable Care to Foreseeable Plaintiffs

In ordinary negligence, the baseline is that people must act as a reasonable person would to avoid creating unreasonable risks of harm to others. Duty analysis often centers on foreseeability: was the plaintiff among the people who could foreseeably be harmed by the defendant’s conduct?

On exams, duty is often straightforward unless the fact pattern involves a special context, such as omissions, third-party conduct, or certain relationships. When in doubt, start with the general duty of reasonable care and then consider whether a doctrine narrows or expands it.

No Duty to Rescue: Misfeasance vs. Nonfeasance

A classic duty issue arises when the defendant did not cause the initial peril but failed to act. The general rule is no duty to rescue or to affirmatively aid a stranger. The law distinguishes:

• Misfeasance: negligent action that creates risk
• Nonfeasance: failure to act

Negligence usually attaches more readily to misfeasance than to nonfeasance.

Common exceptions (often tested as duty triggers) include situations where the defendant has a recognized relationship with the plaintiff, or where the defendant’s own conduct created the risk in the first place. In a bar-style analysis, you do not need an exhaustive catalog of relationships; you need to identify whether the fact pattern suggests an affirmative obligation beyond the general rule.

Foreseeability and the Scope of Duty

Even where a general duty exists, courts sometimes limit liability by framing the duty narrowly. This shows up when the plaintiff seems remote, the chain of events is unusual, or the harm is different in kind from what made the conduct risky. Treat these issues carefully, because they often overlap with proximate cause. A clean answer separates them: duty asks whether any obligation was owed at all; proximate cause asks whether the harm is within the scope of liability given a breach.

Breach: The Reasonable Person Standard

The Core Question

Breach is where you evaluate conduct. The standard is usually the reasonable person under the circumstances. The question is not whether the defendant meant well, nor whether harm was intended. The question is whether the defendant acted with the level of caution society expects to prevent unreasonable risks.

A strong breach analysis does three things:

1. Identifies the relevant risk(s)
2. Describes what reasonable precautions were available
3. Explains why the defendant’s choices were or were not reasonable

Reasonableness as a Balancing of Risk and Precaution

Reasonable care reflects an implicit balancing: how likely was harm, how severe could it be, and how burdensome would precautions have been? Without inventing numbers, you can still reason in that structure. For example, if a precaution was cheap and would have significantly reduced a serious risk, failure to take it tends to look unreasonable. Conversely, if the risk was minimal or the precaution was highly burdensome relative to the danger, the defendant has a stronger argument that their conduct was reasonable.

Applying Breach to Facts

In exam hypotheticals, breach is often the most fact-intensive element. Facts like warnings given, visibility, speed, compliance with policies, or timing of decisions commonly point to whether the defendant behaved reasonably.

Avoid conclusory statements such as “the defendant was negligent.” Instead, connect conduct to risk: “A reasonable person would have anticipated that doing X created a substantial risk of Y, and reasonable precautions such as Z were available.”

Causation: Actual Cause and Proximate Cause

Causation has two separate parts. You must address both.

Actual Cause: The “But-For” Link

Actual causation asks whether the plaintiff’s injury would have occurred but for the defendant’s breach. If the harm would have happened anyway, the defendant’s conduct is not an actual cause.

On an exam, state the test and apply it plainly: remove the breach from the story and ask whether the injury still occurs. If the injury disappears, actual cause is satisfied.

Proximate Cause: Legal Limits on Responsibility

Proximate cause addresses whether it is fair and legally appropriate to hold the defendant liable for the harm that occurred. The key concept is foreseeability of the type of harm and whether intervening events cut off liability.

A practical way to frame proximate cause is: even if the breach was a factual cause, is the harm within the foreseeable scope of the risk that made the conduct negligent?

Intervening Causes

An intervening event is something that occurs after the defendant’s breach and contributes to the injury. Intervening causes matter because they can make the result seem too remote. Your analysis should ask:

• Was the intervening event foreseeable?
• Did it operate independently or was it a natural response to the situation the defendant created?
• Did it change the type of harm or merely the manner in which the harm occurred?

If an intervening event is foreseeable, it typically does not break the chain. If it is highly unusual or extraordinary, it may be treated as a superseding cause, cutting off liability.

Keep your writing disciplined here. Do not recite labels without analysis. Explain why the later event was or was not within the range of what one would expect given the original risk.

Damages: Actual, Compensable Harm

Negligence requires damages. A plaintiff must show real injury, not just risky conduct or near misses. Damages can include physical injury, property damage, and associated losses. The key bar exam point is that negligence is not complete until harm occurs.

When damages are obvious in the facts, state them and move on. When damages are unclear, explain whether the plaintiff can show a tangible loss attributable to the defendant’s conduct.

How to Write a Systematic Negligence Analysis

A reliable approach for bar questions is to write in this order:

1. Duty: Identify the relationship and the general duty of reasonable care; address any no-duty concerns.
2. Breach: Apply the reasonable person standard; discuss foreseeable risks and available precautions.
3. Actual Cause: Apply the but-for test to link breach to harm.
4. Proximate Cause: Evaluate foreseeability, type of harm, and intervening causes.
5. Damages: Identify the injury and connect it to the negligence.

This structure helps you avoid the most common mistakes: skipping duty, collapsing causation into a single sentence, or treating negligence as a conclusion rather than a proof.

Common Pitfalls to Avoid

Collapsing Duty and Proximate Cause

Students often treat foreseeability only once. In reality, foreseeability shows up in both duty and proximate cause. Keep them distinct: duty asks whether a duty of care is owed; proximate cause asks whether this particular harm is within the scope of liability.

Declaring Breach Without Identifying the Risk

Breach requires articulating what made the conduct unreasonable. Name the danger, explain why it was foreseeable, and identify what a reasonable person would have done differently.

Forgetting That Negligence Requires Damages

If the facts show reckless behavior but no injury, you may have no negligence claim. The plaintiff needs actual harm for damages.

Conclusion

Negligence is tested heavily because it mirrors how lawyers and judges analyze real disputes: duty sets the obligation, breach evaluates conduct against the reasonable person standard, causation links conduct to harm, and damages supply the legally compensable injury. If you discipline yourself to move element by element, using foreseeability and reasonableness as the connective tissue, you will produce answers that are clear, persuasive, and reliably high-scoring.