1. Introduction

Generally speaking intentional torts involve claims that the defendant knew with “substantial certainty” that his actions would invade the interests of another. By contrast, negligence cases involve claims that the defendant engaged in behavior without due care for the risks involved. With negligence the focus is on whether the risk was foreseeable, and whether defendant’s conduct fell below the level expected of a reasonable person in light of the foreseeable risks. In order for a plaintiff to be successful in bringing a negligence cause of action, the plaintiff must prove all the following elements of a negligence claim.

1.1 A Duty of Due Care

In general, a duty exists if it is foreseeable that the defendant’s conduct creates unreasonable risks of harm.

1.2. Breach of the Duty

Plaintiff must prove that the defendant failed to use reasonable care to avoid causing harm.

1.3. Causation

The causation element has two parts. Plaintiff must first prove “cause in fact” that the defendant’s breach of duty in some way brought about the plaintiff’s injury Plaintiff must then prove “proximate cause” that the causal connection between the negligent conduct of the defendant and the plaintiff’s injury was close enough that the defendant should be held liable.

1.4. Damages

    The plaintiff must prove that actual injury resulted from the defendant’s conduct. Nominal damages are not awarded for negligent conduct that does not cause injury.

 

2. Applying the Reasonable Person Standard

The general duty is to act as a reasonable person. The jury is asked to make an objective rather than subjective determination. The person who acts is not required to do his or her own best, but is required to act as a hypothetical reasonable person who would act in similar circumstances.

There are three parts to the jury’s finding of “negligence.” The first is whether a duty exists at all. The second question presumes the existence of a duty, and focuses on how the judge describes the duty to the jury. Finally, once the jury is told what the duty is, the jury must apply the law to the facts to determine whether the defendant has breached that duty.

 

3. Proof of Negligence

Res Ipsa Loquitur (事实自证原则) is a doctrine in negligence law. It means the court feels that the jury, having heard these facts, could reasonably conclude that there is negligence on the part of the defendant. The facts are said to speak for themselves.