Chapter Ⅱ　NEGLIGENCE (Ⅰ)

Standard of Care

In modern sense,a cause of action for tort arises where someone (usually the plaintiff) is injured,either physically,emotionally or economically,as a result (cause in fact,or proximate cause – the legal cause) of another’s conduct without privity between the two.In order to pursue a case in tort,we need to look at (1) whether there should be a standard under which the defendant owes a duty of reasonable care toward others in general,and the plaintiff in particular;(2) whether the defendant has breached that duty of care;(3) whether there is a necessary connection between the conduct and the resulting injury;and(4) whether the plaintiff himself fails to exercise due care which may have contributed to the injury.

In this Chapter,we look at the basic elements of the law of negligence,the standard of care.

Elements of Cause of Action

Prosser,Wade and Schwartz’s Torts,10th Ed.2000

“Negligence” is the word used to describe the conduct of the person or company being evaluated.But a cause of action for negligence requires more than negligent conduct.The traditional formula for the elements necessary to the cause of action includes the following:

1.A duty to use reasonable care.This is an obligation recognized by the law,requiring the actor to conform to a certain standard of conduct,for the protection of others against unreasonable risks.

2.A failure to conform to the required standard.This is commonly called breach of the duty.These two elements go together to make up what the courts usually have called negligence;but the term frequently is applied to the second alone.Thus it may be said that the defendant was negligent,but is not liable because he was under no duty to the plaintiff to use reasonable care.

3.A reasonably close causal connection between the conduct and the resulting injury.This is commonly called causation.Causation involves a combination of two elements – causation in fact and legal or “proximate” causation.They receive separate treatment in [our study of the torts].

4.Actual loss or damage resulting to the interests of another.The action for negligence developed chiefly out of the old form of action on the case;and it retained the rule of the action that pleading and proof of damage was an essential part of the plaintiff’s case.It is clear that nominal damages to vindicate a technical right cannot be recovered in a negligence action if no actual damage has occurred.If defendant’s risk-creating negligence conduct threatens but does not harm plaintiff,however,he may be able to obtain an injunction and stop the activity as a “nuisance.” While the modern law of torts has retained the requirement that proof of damage is an essential part of the law of negligence,the question of what constitutes damage is less certain than it once was.Has the plaintiff suffered damage if the wrongful act causes her to fear that she will develop a disease in the future or reduces her chance of surviving a disease?

Although the negligence formula is useful in segregating and drawing attention to the elements of the cause of action the courts require,it is misleading to view the elements as discrete.None of the elements can really be defined except by reference to the others.Another commonly used rubric for negligence is conduct that falls below the standard of care established by law for the protection of others against the unreasonable risk of harm.

Most of the cases [here] involve the allegedly negligent conduct of the defendant from whom the plaintiff is seeking compensatory damages.Sometimes,however,it is the plaintiff’s conduct that is being measured against the standard of the reasonable person because the defendant has pled the affirmative defense of contributory negligence: the defendant is claiming the plaintiff’s conduct was negligent and that the plaintiff’s negligent conduct also contributed to the cause of plaintiff’s injuries.For now,keep in mind that the standard – reasonable care under the circumstances – applies to all parties,whether they are plaintiffs or defendants in a particular case.