Start Here: 5 Things You MUST Know
A tort is a civil wrong (not a crime or breach of contract) that causes injury. Three types: negligence, intentional, strict liability
Negligence has 4 elements (ALL required): Legal Duty, Breach, Proximate Cause, Actual Injury — "Don't Break Cars Intentionally"
Duty owed increases: Trespasser < Licensee < Invitee. Invitees get the highest protection
Reckless misconduct is worse than negligence — it allows punitive damages and defeats some defenses
Negligence per se = statute violation IS the proof. Res ipsa loquitur = "thing speaks for itself" (shifts burden)
1. What is a Tort?
Tort
A wrongful act or omission (other than a crime or breach of contract) that injures another person and gives rise to a civil action for money damages. The person who commits a tort is called a tortfeasor.
Three Classifications of Torts
Negligence
Unintentional harm caused by failure to exercise reasonable care. The focus of THIS assignment.
Intentional Torts
Deliberate wrongful acts (battery, assault, defamation). Covered in Assignment 9.
Strict Liability
Liability without fault for abnormally dangerous activities or defective products. Covered in Assignment 10.
Real-World Scenario: Negligence Tort
The Setup: A driver is texting while driving through a residential neighborhood.
What Happens: The driver runs a stop sign and hits a pedestrian, breaking their leg.
The Result: This is a negligence tort. The driver did not INTEND to hit anyone, but failed to exercise reasonable care. The pedestrian can sue for medical bills, lost wages, and pain and suffering.
2. Applicable Law — Which State's Rules Apply?
When a tort involves parties from different states, the court must decide which state's law to apply. Two key terms: Forum = the court/state where the case is tried. Situs = the place where the tort occurred.
Lex Loci
Traditional rule: apply the law of the state where the tort happened (the situs).
Interest Analysis
Modern approach: apply the law of the state with the greatest interest in protecting its citizens.
Significant Contacts
Apply the law of the state with the most connections to the case (where parties live, where harm happened).
Exam Tip
These three rules can lead to DIFFERENT state laws being applied to the SAME case. A New Jersey driver injured in Pennsylvania by a New York driver: lex loci = PA law; interest analysis = possibly NJ law; significant contacts = depends on connections.
3. The Four Elements of Negligence
Critical Rule
The plaintiff must prove ALL FOUR elements. If any ONE element is missing, there is NO negligence.
D
Legal Duty
Defendant owed a duty of care
B
Breach
Failed to meet that duty
C
Cause
Breach caused the harm
I
Injury
Real, measurable harm
Memory Trick: D-B-C-I
"Don't Break Cars Intentionally" — Duty, Breach, Cause, Injury
4. Element 1: Legal Duty
A legal duty arises when the law recognizes a relationship between parties that requires one to exercise a certain standard of care toward the other. Duty can arise by statute (traffic laws), contract (doctor-patient agreement), or relationship (property owner to visitors).
The Reasonable Person Test
Would a reasonable, careful, prudent person have acted the same way under the same circumstances? If not, there is a breach. This is an objective standard — it does not matter what the defendant personally thought was reasonable.
Duty Owed by Visitor Status
| Visitor Type | Who They Are | Duty Owed |
|---|---|---|
| Trespasser | On property WITHOUT permission | Refrain from willful/wanton injury only. No traps, but no duty to make it safe. |
| Licensee | On property WITH permission, for THEIR own benefit (friend visiting, salesperson) | No willful/wanton injury + warn of KNOWN hidden dangers |
| Invitee | On property for MUTUAL benefit or public invitation (customer, patient) | Reasonable care to keep premises safe + actively inspect for hazards |
Real-World Scenario: Invitee vs. Licensee
The Setup: A grocery store has a wet floor in aisle 3 after mopping. A customer (invitee) and a door-to-door vendor who walked in (licensee) are both in the store.
What Happens: Both slip on the wet floor and are injured.
The Result: The store owes the customer (invitee) the highest duty — they should have put out a wet floor sign AND actively inspected for hazards. For the vendor (licensee), the store only needed to warn of dangers it KNEW about. The customer has a stronger negligence claim.
Special Standards of Care
Persons with Disabilities
Judged by the standard of a reasonable person with that same disability. A blind person is measured against a reasonable blind person.
Professionals
Held to a HIGHER standard — the skill/knowledge of an average member of that profession in the same community.
Children
Judged by a child of similar age/intelligence. BUT: A minor doing an adult activity (like driving) is held to the ADULT standard.
Real-World Scenario: Professional Standard
The Setup: Dr. Smith, a general practitioner, performs a routine physical exam.
What Happens: Dr. Smith fails to notice an obvious lump that any competent doctor would have detected. The patient's cancer goes undiagnosed for a year.
The Result: Dr. Smith breached the professional standard of care. He is measured against what an average doctor in his field would have done — and missing an obvious lump falls below that standard.
5. Element 2: Breach of Duty
The defendant failed to meet the standard of care that was owed. They didn't do what a reasonable person would have done, or they did something a reasonable person would NOT have done.
Ordinary Negligence vs. Reckless Misconduct
Ordinary Negligence
Failure to exercise reasonable care. "I should have been more careful."
Example: A driver glances at their phone for a moment and runs a red light.
Reckless Misconduct
Conscious disregard for a known, serious risk. "I know this is dangerous but I don't care." Worse than negligence but less than intentional.
Example: A delivery driver goes 90 mph through a school zone during dismissal.
Why the Distinction Matters (4 Key Consequences)
1. Defense limitations: Contributory negligence may NOT defeat reckless misconduct claims (it CAN defeat ordinary negligence)
2. Punitive damages: Courts can award punitive damages for reckless misconduct (not typically for ordinary negligence)
3. Trespasser liability: Landowners can be liable for reckless misconduct toward trespassers, but not usually for ordinary negligence
4. Auto guest statutes: Some states bar recovery for ordinary negligence in guest-passenger cases but ALLOW it for reckless misconduct
6. Proof of Negligence — Two Special Doctrines
Sometimes it is hard to directly prove negligence. The law provides two doctrines to help plaintiffs.
Negligence Per Se ("Negligence in Itself")
When a defendant violates a statute that was designed to protect the plaintiff's class from the type of harm that occurred, the violation IS the proof of negligence. No need to separately prove carelessness.
Defendant violated a specific statute
Statute was designed to protect plaintiff's class
Harm was the type the statute was designed to prevent
Real-World Scenario: Negligence Per Se
The Setup: A state law requires all construction sites to have guardrails on scaffolding above 10 feet.
What Happens: A contractor skips the guardrails on 15-foot scaffolding. A worker falls and breaks both legs.
The Result: This is negligence per se. The statute was designed to protect workers (plaintiff's class) from falling (the type of harm). The violation IS the proof — the worker does not need to separately show the contractor was careless.
Res Ipsa Loquitur ("The Thing Speaks for Itself")
When the plaintiff cannot prove exactly what the defendant did wrong, but circumstances strongly suggest negligence. It shifts the burden — the defendant must explain why they were NOT negligent.
Event probably wouldn't happen without negligence
Defendant had exclusive control + superior knowledge
Real-World Scenario: Res Ipsa Loquitur
The Setup: A patient goes under general anesthesia for knee surgery.
What Happens: After surgery, the patient discovers severe burns on their arm that have nothing to do with the knee operation.
The Result: Res ipsa loquitur applies. Burns on an arm during knee surgery do not happen without negligence. The surgical team had exclusive control and superior knowledge. The burden shifts to the medical team to explain.
Exam Tip
Res ipsa loquitur does NOT automatically win the case. It only creates an inference of negligence that the defendant can rebut with evidence.
Cheat Sheet
Print this page for quick referenceFour Elements of Negligence
- Legal Duty + Breach + Proximate Cause + Actual Injury
- ALL FOUR required. Missing one = no negligence
- Memory: D-B-C-I = "Don't Break Cars Intentionally"
Visitor Hierarchy
- Trespasser = no willful/wanton injury only
- Licensee = warn of KNOWN hidden dangers
- Invitee = actively inspect + keep safe (HIGHEST)
Special Standards
- Disabled = reasonable person with same disability
- Professionals = average member of profession
- Children in adult activities = ADULT standard
Proof Doctrines
- Negligence per se = statute violation IS the proof
- Res ipsa loquitur = "thing speaks for itself"
- Res ipsa = inference only, NOT automatic win
Exam Trap Alerts
1. Licensee vs. Invitee Confusion
A door-to-door salesperson is a LICENSEE (there for their own purpose), NOT an invitee. A customer in a store is an INVITEE (mutual benefit). The exam loves this distinction.
2. Minors Driving = Adult Standard
Children are normally judged by the child standard, EXCEPT when engaging in adult activities like driving a car. Then they are held to the adult standard of care.
3. Negligence Per Se Is Not Unlimited
It only applies when the statute was designed to protect the plaintiff's specific class from the type of harm that occurred. Violating ANY law does NOT automatically equal negligence per se.
4. Res Ipsa Loquitur Does NOT Mean Automatic Win
It creates an inference of negligence that shifts the burden. The defendant can still rebut it with evidence showing they were NOT negligent.
5. Reckless Misconduct Changes Everything
Contributory negligence may NOT be a defense, punitive damages become available, and landowners can be liable even to trespassers. Know the 4 consequences.
Quick Reference Summary
Tort
Civil wrong (not crime/breach of contract) causing injury. Tortfeasor = wrongdoer.
Four Elements
Duty + Breach + Cause + Injury. ALL four required.
Reasonable Person
Objective standard: what would a careful, prudent person do?
Trespasser
Lowest duty. No willful/wanton injury only.
Licensee
Warn of KNOWN hidden dangers. No duty to inspect.
Invitee
Highest duty. Actively inspect + keep premises safe.
Negligence Per Se
Statute violation = automatic proof if statute protects this class from this harm.
Res Ipsa Loquitur
"Thing speaks for itself." Exclusive control + probably negligence. Shifts burden.
Reckless Misconduct
Conscious disregard of risk. Allows punitive damages, defeats some defenses.