Negligence, Element by Element: The Torts Rule You'll Use on Every Exam

Negligence is the workhorse of the Torts course. It's also a rule where students often know the four elements by name but lose points because they skip the sub-rules inside each one. Here's a breakdown you can build on.

The rule: To establish negligence, the plaintiff must prove that the defendant owed a duty of care, breached that duty, and that the breach was the actual and proximate cause of the plaintiff's damages.

1. Duty

The general rule is that a person owes a duty of reasonable care to foreseeable plaintiffs. Under the majority approach from Palsgraf, a defendant owes a duty only to plaintiffs within the zone of danger. The minority view (Andrews's dissent) says a duty runs to everyone if the defendant's conduct creates an unreasonable risk to anyone.

Sub-issues to watch for:

• No general duty to rescue, with exceptions: a special relationship, the defendant created the peril, or the defendant began a rescue.
• Special standards of care, such as children (a child of like age, intelligence, and experience, unless engaged in an adult activity), professionals (the knowledge and skill of a member of the profession in good standing), and land possessors (duties that vary by the entrant's status in many jurisdictions).

2. Breach

A defendant breaches the duty by failing to act as a reasonably prudent person would under the circumstances. Two tools show up often:

• Negligence per se: violating a statute can establish breach if the statute was meant to protect this class of people from this type of harm.
• Res ipsa loquitur: breach can be inferred when the accident is the kind that doesn't normally happen without negligence and the instrumentality was in the defendant's control.

3. Causation

Causation has two parts, and exams test both.

Actual cause is usually the but-for test: but for the defendant's conduct, would the harm have occurred? When two causes would each have been sufficient, courts use the substantial factor test.

Proximate cause limits liability to harms that were a foreseeable result of the defendant's conduct. Intervening acts like ordinary negligence of rescuers or medical providers generally don't break the chain. Unforeseeable intervening acts, such as intentional crimes the defendant had no reason to expect, may.

4. Damages

The plaintiff must show actual harm to person or property. Nominal damages aren't available for negligence. The eggshell plaintiff rule means the defendant takes the plaintiff as they find them, so if the injury is worse because of a preexisting condition, the defendant is liable for the full extent.

Defenses to keep on your list

Contributory negligence (a complete bar in a small number of jurisdictions), comparative negligence (pure or modified, in most states), and assumption of the risk.

How to use this on an exam

Write the full rule first. Then take each element in order and apply the facts. If one element is obviously met, say so in a sentence and move on. Spend your time where the facts create a real question, usually breach or proximate cause.

Where Lexora Prep fits

Negligence is exactly the kind of rule Lexora Prep is built to train. Lexora is a Black Letter Law rule-training platform with concise rule statements you practice from memory through typing, fill-in-the-blank, element identification, ordering, and flashcards. If you keep forgetting that proximate cause is part of causation, Lexora notices and brings the rule back until you don't. When you're ready to apply it, Essay Practice has original fact patterns with feedback on how well you spotted and analyzed each issue.

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About Lexora Prep

Lexora Prep is a Black Letter Law rule-training and essay practice platform for law students and bar exam candidates. It gives you 700+ concise rules across 8 bar-tested subjects and asks you to recall them, not just reread them, through five modes: Typing, Fill Blank, Rule Elements, Ordering, and Flashcards. Lexora tracks the elements you miss, brings weak rules back for review, and builds each session around your weak areas and available study time. When you're ready to apply the law, Essay Practice gives you 120+ original essays with detailed feedback on issue spotting, rule accuracy, application, conclusions, and organization.

For law students, that means rule statements that are ready for finals, and a head start on the bar exam you'll take after graduation.

Start practicing free → The Free plan includes a rule-practice preview and 3 Essay Practice questions.

Lexora Prep is a supplemental study tool, not a full bar review course, and it does not guarantee exam results. Legal rules can vary by jurisdiction; verify important rules with your course materials.