Prepared by Ramona Atkins
Negligence Requirements and Flow Chart
Negligence requires the following elements:
General Duty of Due Care:
Everyone owes everyone a
general duty of due care to not
subject others to unreasonable
risks of harm. Note, businesses
owe a higher duty of care.
“But for” A doing X, such and
such would not have happened.
Actual (the factual cause of what
happened) and * Proximate (the
legal cause) is needed. You must
*Note under proximate cause in the chart below, the plaintiff (person bringing the cause of action for negligence)
will assert that the defendant the person whom the lawsuit is being brought against is the actual cause (using the
but for test) and the proximate cause of his/her injuries. When establishing proximate cause, the plaintiff will assert
the chart’s top lines coming off of proximate cause , hence that the defendant was the direct cause. Next, the
Plaintiff will indicate that the defendant was the forseeable cause of his/her injuries.
The Defendant however will assert that despite perhaps appearing to be the actual cause of the Plaintiff’s injuries,
that he/she was the indirect and unforeseeable cause of the Plaintiff’s injuries (the bottom lines of the chart).
Actual Cause (”But For” test)
Any intervening acts?
*Acts of God
Defenses: The three main defenses are:
If in a jurisdiction that utilizes
this defense, the plaintiff will
be barred from recovering
(two types: Pure and 50/50)
If Pure is utilized by a
jurisdiction, the court will
take the amount the
Plaintiff is negligent and
subtract it from the overall
award of damages.
If in a 50/50 jurisdiction,
and the Plaintiff is over
50% negligent, the court
will treat the Plaintiff’s
negligence like contributory
negligence, and bar
Assumption of the
If the Plaintiff knowingly and
voluntarily assumed the risk
of entering into an activity
and became injured, he/she
will be unable to recover
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