Perhaps the paradigmatic example of a tort is negligence. For example, a motorist who causes a fatal collision by looking at his cellular phone instead of the road may have committed a tort by driving negligently. To establish a defendant’s negligence, a plaintiff must ordinarily prove all four of the following elements:
- The defendant owed a duty to the plaintiff. (Different defendants may owe different duties depending on the circumstances. For instance, whereas motorists owe a duty of reasonable care to not injure pedestrians and other drivers, doctors generally owe their patients a stricter duty to abide by the standard of care and prudence prevailing in the medical community.)
- The defendant breached that duty. (For instance, a defendant may breach his duty of reasonable care by acting carelessly.)
- The plaintiff suffered a legally cognizable injury. Whereas a plaintiff may ordinarily sue a defendant for personal injury or property damage, courts have generally been less willing to entertain negligence claims alleging pure economic losses like lost revenues.
- The defendant's breach of his duty caused the plaintiff’s injury. The plaintiff must prove not only that the defendant actually caused his injury—that is, that the injury would not have occurred but for the defendant's breach — but also that the defendant proximately caused his injury—that is, that the causal connection between the defendant's breach and the plaintiff's injury was sufficiently direct as a matter of public policy. (Typically, a defendant is responsible only for injuries it could reasonably anticipate and not those that are unforeseeable or remote.)
Notably, under certain circumstances, a defendant may be liable for negligence committed by a third party. For instance, under the doctrine of respondeat superior, an employer may be liable for torts committed by its employees within the scope of their employment.
Negligence per se
A defendant can also be found negligent per se by violating a statute or regulation if the plaintiff can show that (1) the defendant violated the statute, (2) the statute is a safety statute, (3) the act caused the kind of harm the statute was designed to prevent, and (4) the plaintiff was within the zone of risk. In some jurisdictions, negligence per se creates merely a presumption of negligence.
Defenses to a negligence claim include the following:
- Assumption of risk
- Comparative negligence
- Contributory negligence
- Defense of others
- Defense of property
- Statute of limitations
- Overview section: Kevin M. Lewis, Introduction to Tort Law (CRS Report IF11291) (Aug. 13, 2019) (full-text).