PERSONAL RISK CONCEPTS · 6 MIN READ

Negligence: Elements, Defenses, and Damages

Liability coverage responds mostly to negligence claims, so the exam drills the cause of action. A plaintiff must prove four elements: a duty of care owed, breach of that duty, causation (both but-for cause in fact and proximate, foreseeable cause), and actual damages. The measuring stick for breach is the reasonable person standard — objective, not personalized. Negligence per se shortcuts part of the proof: when the defendant violates a safety statute designed to protect the plaintiff's class against the type of harm suffered, the violation conclusively establishes duty and breach — but the plaintiff must still prove causation and damages. Proximate cause carries its own famous limit: liability runs only to foreseeable plaintiffs within the zone of danger, the principle associated with Palsgraf. Defenses allocate fault to the plaintiff. Under old-style contributory negligence, any plaintiff fault — even slight — completely bars recovery; the last clear chance doctrine softens the bar by letting a contributorily negligent plaintiff recover when the defendant had the final opportunity to avoid the harm and failed to take it. Most states have moved to comparative negligence: pure comparative reduces recovery by the plaintiff's percentage of fault no matter how large, while modified comparative cuts off recovery once plaintiff fault passes a threshold (50 or 51 percent, depending on the state). Assumption of risk — express (a signed waiver) or implied (voluntarily encountering a known danger) — is a further defense. Even a plaintiff's failure to wear an available seatbelt is treated as comparative fault bearing on damages, though many states cap the reduction by statute or bar the evidence entirely. Damages come in categories the exam expects you to label. Special damages are documentable out-of-pocket economic losses — medical bills, lost wages, repair costs; general damages are non-economic losses inherent in the tort — pain and suffering, emotional distress, loss of consortium. Claim evaluators often estimate general damages with a specials multiplier of roughly 1.5 to 5 times the economic losses. Punitive damages punish egregious conduct and are constitutionally limited: under BMW v. Gore and State Farm v. Campbell, due process is measured by reprehensibility, the punitive-to-compensatory ratio, and comparable civil penalties, with few awards beyond a single-digit ratio surviving and a 4-to-1 ratio described as close to the constitutional line. Expert testimony supporting damages and causation must satisfy the reliability gatekeeping standard from Daubert.