Negligence
Duty, breach, causation, damages—then the defenses. Half the Torts section lives here, and the points hide in the special-duty rules and the two causation questions.
Duty—and to whom
You owe reasonable care to foreseeable plaintiffs in the zone of danger (Cardozo's majority view; Andrews would extend to everyone harmed). Rescuers are always foreseeable—danger invites rescue. Generally no duty to act—unless you created the peril, started helping, or have a special relationship (innkeeper, common carrier, parent).
| Special duty | The standard |
|---|---|
| Children | A reasonable child of like age, intelligence, and experience—adult standard for adult activities (driving) |
| Professionals | The knowledge and skill of an ordinary member of the profession in good standing—doctors: national standard, informed consent |
| Land: trespassers | Undiscovered: no duty. Discovered/anticipated: warn of known, hidden, artificial dangers. Children: attractive nuisance (foreseeable child trespassers + dangerous artificial condition) |
| Land: licensees | Social guests—warn of known hidden dangers; no duty to inspect |
| Land: invitees | Business visitors and the open-to-public—duty to inspect and make safe or warn |
| NIED | Zone of danger + physical symptoms; or bystander: close relative, present at the scene, contemporaneous perception |
Noodle sneaks into Rosa's café after hours (undiscovered trespasser)—no duty. Lana, a paying customer, slips where Rosa never inspected—invitee, breach. And when Liv dives into traffic to pull Lana clear, injured-rescuer Liv is a foreseeable plaintiff too.
Breach—and its two shortcuts
Breach = conduct below the reasonably prudent person under the circumstances. Negligence per se: an unexcused violation of a safety statute is conclusive breach if the plaintiff is in the protected class and the harm is the type the statute targets. Res ipsa loquitur: the accident ordinarily doesn't happen without negligence + the instrumentality was in the defendant's exclusive control—gets you to the jury, no directed verdict for the defendant.
Liv runs a red light and hits a pedestrian—negligence per se (traffic statute, protected class, targeted harm). A barrel rolls out of Noodle's warehouse onto Lana—res ipsa; barrels don't do that without someone's negligence.
Causation: two separate questions
- But-for the breach, no harm
- Two sufficient causes → substantial factor
- Two negligent Ds, one unknown cause (Summers v. Tice) → burden shifts to the defendants
- Liability for foreseeable results and foreseeable intervening forces
- Medical malpractice, rescue, ordinary negligence after the accident → foreseeable, chain holds
- Criminal acts and acts of God are superseding only when unforeseeable
- Eggshell plaintiff: take the victim as found—extent of harm never needs to be foreseeable
Liv rear-ends Lana; the ER doctor botches the surgery—Liv is liable for the malpractice too (foreseeable intervening force). Lana's rare bone condition triples the damage—eggshell plaintiff, Liv pays it all.
Damages
Negligence requires actual damages—no nominal damages, no claim for a near-miss. Property damage and personal injury qualify; pure economic loss alone generally doesn't. Punitives only for conduct beyond negligence (wanton, reckless).
The defenses
| Regime | Effect of plaintiff's fault |
|---|---|
| Pure comparative (default on the MBE) | Award reduced by P's percentage—even a 90%-at-fault plaintiff recovers 10% |
| Modified comparative | Reduced—until P's fault passes 50%, then barred entirely |
| Contributory negligence (minority) | ANY plaintiff fault bars recovery—unless the defendant had the last clear chance |
| Assumption of risk | P knew the specific risk and voluntarily took it—express waivers, spectators at the ballpark; folded into the percentages in comparative states |
Jaywalking Lana (30% at fault) is hit by speeding Liv (70%). Pure comparative: Lana recovers 70%. Modified: same. Contributory-negligence state: Lana recovers nothing—unless Liv saw her in time and could have stopped.
Unless the question says otherwise, the MBE default is pure comparative negligence. If the facts name a contributory-negligence jurisdiction, hunt for last clear chance before writing off the plaintiff.
Where the points are
The traps examiners actually set.
- Most tested
- The landowner trio (trespasser/licensee/invitee); negligence per se's class-and-harm limits; foreseeable intervening forces (medical malpractice, rescuers); the comparative-fault regimes.
- Classic traps
- A statute violation where the harm isn't the targeted type (back to ordinary RPP); res ipsa winning the case (it only reaches the jury); calling foreseeable criminal acts superseding; requiring the extent of injury to be foreseeable (eggshell); forgetting negligence needs actual damages.
Keep going: Negligence flowchart Torts Attack Sequences Duty MEE guide