Skip to main contentNegligence: Prima Facie Case
1. Black Letter Law / Rule
To establish a prima facie case for negligence, the Plaintiff must prove four elements in chronological order:
- Duty: The Defendant owed a legal duty of care to the Plaintiff .
- Breach: The Defendant’s conduct fell below the applicable standard of care .
- Causation: The Defendant’s breach was the Actual Cause (Cause-in-Fact) and Proximate Cause of the harm .
- Damages: The Plaintiff suffered actual damages (Note: For Torts I, simply state “facts indicate plaintiff suffered damages” as specific damage calculations are Torts II material) .
Duty of Care
1. Black Letter Law / Rule
General Duty Rule: By virtue of engaging in an activity, one is under a legal duty to act as an ordinary, prudent, and reasonable person to protect all foreseeable plaintiffs from an unreasonable risk of physical injury .
Establishing Duty: There are three primary tools to prove a duty exists:
- Engagement in Activity: Engaging in conduct that increases the risk of physical harm toward foreseeable plaintiffs .
- Negligence Per Se: (Discussed below).
- Privity of Contract: A contractual relationship creating a duty .
2. Key Cases
- Palsgraf: (Referenced regarding the “Zone of Danger”).
- Holding: If a plaintiff is outside the “zone of danger” (e.g., 60 feet away), the defendant’s conduct does not increase the risk of physical harm to them, and no duty is owed .
Negligent Infliction of Emotional Distress (NIED)
1. Black Letter Law / Rule
Direct Victim (Pure Emotional Distress):
When a plaintiff suffers “pure” emotional distress (unaccompanied by physical injury), they cannot use the standard duty analysis involving risk of physical harm. Instead, to prove duty, the plaintiff must show a definite and objective physical manifestation of severe emotional distress .
Bystander Recovery:
A bystander who witnesses injury to a third party may recover for emotional distress if they satisfy three requirements:
- Close familial relationship with the victim.
- Present at the scene and aware of the injury-causing event.
- Severe emotional distress beyond that of a disinterested witness (and not abnormal) .
3. Hypotheticals & Examples
- The Baseball Bat Attack: A husband is hit with a baseball bat; the wife witnesses it.
- Analysis: The husband suffered battery/physical injury. The wife suffered pure emotional distress. She must use the Bystander Recovery rules to establish duty because she was not physically touched .
Breach of Duty
1. Black Letter Law / Rule
Breach is established by showing the defendant’s conduct fell below the standard of care. There are three primary pathways to prove breach :
- Reasonable Person Standard: Conduct fell below the standard of care of a reasonably prudent person under the circumstances .
- Note on Minors: A minor’s conduct is compared to a reasonable prudent minor of like age/experience, unless engaged in an adult activity (e.g., driving), in which case they are held to the adult standard .
- Note on Professionals: A professional (e.g., new attorney/pilot) is held to the standard of a reasonably prudent professional in that field. Subjective inexperience is not a defense .
- Negligence Per Se: Violation of a statute (see below).
- Res Ipsa Loquitur: The accident is of a type that normally does not occur in the absence of negligence .
4. Nuance & Policy
- Probative Value of Non-Statutes: A posted sign (e.g., “Don’t walk here”) is not a statute, so it cannot establish Negligence Per Se. However, it is probative—it has a tendency in reason to prove what reasonable conduct under the circumstances would be .
Negligence Per Se
1. Black Letter Law / Rule
Definition: Violation of an applicable statute (criminal/regulatory) establishes a presumption of the existence of a duty and breach thereof .
Requirements:
- Criminal/Regulatory Statute: The statute must provide for a criminal penalty (e.g., Vehicle Code, Penal Code) .
- Class of Person: Plaintiff is within the class of people the statute was designed to protect.
- Class of Harm: The harm suffered is the type the statute was designed to prevent.
3. Hypotheticals & Examples
- Speeding: Driving 30mph over the limit violates the Vehicle Code (a criminal statute punishable by fine). This constitutes Negligence Per Se .
- Exam Tip: Do not discuss Negligence Per Se if there is no statute in the fact pattern (e.g., dropping a beer bottle next to a pool with no statute cited). It is a “non-issue” .
Causation
Note: “Causation” implies two distinct elements: Causation in Fact and Proximate Cause. Both must be proven .
A. Causation in Fact (Actual Cause)
1. Black Letter Law / Rule
The “But-For” Test: “But for the defendant’s negligent conduct, the plaintiff would not have been injured.” If true, the defendant is the Cause-in-Fact .
Multiple Defendants / Complex Causation:
- Concurrent Causes: Two negligent acts combine to cause the injury, but neither alone would have been sufficient.
- Test: The “But-For” test works for both defendants (e.g., Buggy with no lights + Car on wrong side of road. But for each factor, the accident wouldn’t have happened) .
- Joint Causes: Two negligent acts combine, and either alone would have been sufficient to cause the injury (e.g., two merging fires).
- Test: The “But-For” test fails. Use the Substantial Factor Test .
- Alternative Liability: Two defendants act negligently (e.g., shoot guns), but only one caused the harm, and it is unknown which one. (Burden shifts to defendants) .
B. Proximate Cause
1. Black Letter Law / Rule
Definition: A legal doctrine that cuts off liability for harm, even if the defendant was the Cause-in-Fact, because it would be unfair or unjust to hold the defendant liable .
Analysis Framework:
- Direct Cause: No intervening forces between D’s act and P’s injury. D is liable for all foreseeable results.
- Indirect Cause (Intervening Acts): An outside force comes into play after D’s act.
- Intervening Act: Any subsequent negligent act. Does not automatically cut off liability .
- Superseding Act: An intervening act that does cut off liability. To be superseding, the act must be extraordinary, unforeseeable, and independent .
2. Key Concepts
- Rescue Doctrine: “Danger (or Peril) invites rescue.”
- Rule: If Defendant proximately causes danger, and a rescuer is injured during the rescue, the Defendant is liable to the rescuer. Rescuers are foreseeable plaintiffs whenever there is danger .
3. Hypotheticals & Examples
- The Ambulance Crash: D negligently breaks P’s toes. While P is in an ambulance, a third party T-bones the ambulance, breaking P’s hand.
- Analysis: The T-bone is an Intervening Act. If it is a normal traffic accident, it is foreseeable and flows from the situation created by D. D is liable for the toes and the hand. If the T-bone was Superseding (extraordinary/independent), D is only liable for the toes .
- The Buggy and Tractor: Tractor parks illegally (intervening). Buggy hits it. Tractor parking is intervening, but likely not superseding if foreseeable .
Intentional Torts (Specific Intent)
1. Black Letter Law / Rule
Intent: The actor desires to cause the consequences of their act, or knows with substantial certainty that the consequences will result .
- Specific Intent: The goal is to bring about the specific consequences (e.g., harmful contact) .
2. Key Cases
- Garratt v. Dailey (The Chair Case):
- Facts: A boy pulls a chair away as a woman sits.
- Holding: Even if he didn’t desire to hurt her, he knew with substantial certainty that she would hit the ground. This constitutes the requisite intent for battery .
Exam Writing Strategy
1. The “Issue Outline” Approach
Before writing, create an outline:
- Identify Parties: (e.g., Plaintiff v. Defendant).
- Identify Cause of Action: (e.g., Negligence, Battery).
- Prima Facie Elements: List elements (Duty, Breach, Causation, Damages).
- Affirmative Defenses: Only discuss if facts trigger them .
- Use Headings: Clearly label “Duty,” “Breach,” etc.
- IRAC Method:
- Issue: State the legal question.
- Rule: Provide the Black Letter Law (Do not cut-and-paste notes; use memory).
- Analysis: Apply specific facts to the rule elements.
- Conclusion: State liability.
- Avoid Non-Issues: Do not discuss doctrines that are not triggered by the facts (e.g., do not discuss private necessity if there is no emergency; do not discuss contract privity for a car accident) .
- Chronology: Discuss elements in order. For negligence: Duty -> Breach -> Causation (Actual, then Proximate) -> Damages .
