Torts Deep Dive: Negligence, Defenses and the Art of Element-Level Analysis
Standfirst:
Negligence looks simple — duty, breach, causation, and damages — but true mastery lies in analysis. Every word in the rule carries argument potential. The best essays don’t just state the law; they reason both sides.
Why Negligence Matters
If you get a Torts essay — on the bar exam or in law school — there is a very high likelihood that Negligence will be tested.
It’s the most common tort, the most flexible rule, and the one examiners use to measure your ability to apply law to facts from both perspectives.
Negligence isn’t about memorizing “the reasonable person.” It’s about whether you can analyze reasonableness under pressure — seeing every argument for both sides.
Your task isn’t to find the “right” answer; it’s to show disciplined reasoning through the elements.
The Rule: Negligence
Negligence is the failure to exercise the care that a reasonably prudent person would under similar circumstances, resulting in injury to another.
The elements are:
- Duty – a legal obligation to conform to a standard of reasonable care.
- Breach – failure to act as a reasonable person would.
- Causation – both actual cause (“but-for” test) and proximate cause (foreseeability).
- Damages – actual harm suffered by the plaintiff.
- Defenses – contributory negligence, comparative fault, assumption of risk.
The Hypo
P, a pedestrian, was texting while crossing the street at dusk outside a marked crosswalk. D, driving at the speed limit, looked down momentarily to adjust the car’s air vents. When D looked back up, P was only ten feet ahead. D braked but struck P, causing a broken leg.
This is a classic negligence fact pattern — because each element can be argued both ways.
Application: Arguing Both Sides
Your job in a Negligence essay is to be creative within structure.
You’re not memorizing arguments — you’re learning to reason like a lawyer.
The examples below illustrate how to think through both sides, not what to copy verbatim. Each fact pattern will demand your own precise judgment and phrasing.
Duty (Cardozo and Andrews Views)
Under Cardozo’s view (majority) from Palsgraf v. Long Island Railroad Co., a defendant owes a duty only to those who are foreseeable plaintiffs — people within the “zone of danger.”
Under Andrews’ view (dissent), everyone owes a duty of reasonable care to the world at large; foreseeability is considered under proximate cause, not duty.
Why P is foreseeable under Cardozo:
Even though P was outside the crosswalk, P was still a pedestrian near the roadway at dusk — a situation that a reasonably prudent driver should anticipate. Drivers know pedestrians often cross mid-block or emerge from between parked cars, particularly in low-light conditions.
P’s texting and jaywalking may be careless, but those acts make P comparatively negligent, not unforeseeable. P remained within the foreseeable zone of risk created by D’s momentary distraction.
- For P (Cardozo & Andrews):
- Cardozo: P was within the foreseeable zone of danger — pedestrians near a roadway are foreseeable plaintiffs.
- Andrews: Duty extends to everyone who could be harmed by careless driving; D owed a duty to the world at large.
- For D (Cardozo & Andrews):
- Cardozo: The combination of dusk visibility and P’s mid-block crossing arguably placed P just outside the range a reasonable driver would anticipate.
- Andrews: Duty exists broadly, but P’s unusual conduct would still weigh against proximate cause, even under a universal duty view.
✅ Exam Tip:
Always mention both Cardozo and Andrews when analyzing duty and foreseeability. Every full-credit negligence essay does.
Breach
- For P: D breached by diverting attention from the road. Even a brief distraction is unreasonable when pedestrians are nearby — a reasonable driver keeps eyes forward.
- For D: Adjusting air vents momentarily is normal driving behavior, not negligence. D maintained a lawful speed and wasn’t texting or impaired. A reasonable person could briefly adjust an air vent without breaching the duty of care.
Causation
- Actual Cause:
- For P: But for D looking away, D would have seen P in time to stop.
- For D: Even if D hadn’t looked away, P stepped into the roadway so suddenly that the collision was unavoidable.
- Proximate Cause:
- For P: Hitting a pedestrian after momentary inattention is a foreseeable result of distracted driving.
- For D: The timing and proximity of P’s entry into the street — texting and outside a crosswalk — made the accident unforeseeable and not proximately caused by D’s brief glance away.
Defenses: Contributory Negligence, Comparative Negligence & Assumption of Risk
Even when negligence is established, the analysis isn’t over.
Defendants can limit or bar recovery through affirmative defenses — the most tested of which are contributory negligence, comparative negligence, and assumption of risk.
Contributory Negligence (Minority Rule)
Under the traditional rule, if the plaintiff is even 1% at fault, recovery is completely barred.
This rule survives in only a few jurisdictions.
- For D: P’s texting and jaywalking directly contributed to the injury; even slight fault bars recovery.
- For P: Courts sometimes apply the last clear chance doctrine — if D had the final opportunity to avoid the harm but failed, P can still recover.
Exam Tip: Always mention both contributory and comparative negligence unless the jurisdiction is specified.
Comparative Negligence (Majority Rule)
Most jurisdictions follow comparative negligence, which reduces P’s recovery by their percentage of fault.
- Pure comparative: P can recover even if 99% at fault (recovery reduced accordingly).
- Modified comparative: P can recover only if less than 50% (or 51%) at fault.
Application to the Hypo:
- For D: P’s texting and crossing mid-block show significant negligence; under modified rules, recovery should be reduced or barred if P’s fault exceeds 50%.
- For P: D was operating a motor vehicle and looked away from the road — a higher standard of care applies to drivers. Even if P was careless, D’s negligence was greater.
Assumption of Risk
This defense applies when P knowingly and voluntarily encounters a known danger.
- Express assumption: Written or oral acknowledgment (“enter at your own risk”).
- Implied assumption: P’s conduct implies voluntary exposure to danger.
Application:
- For D: P knowingly crossed mid-block while texting, voluntarily exposing themselves to risk.
- For P: P didn’t appreciate the specific risk — distracted behavior isn’t the same as voluntary consent. Without knowledge and consent, this defense fails.
Key Point: On the bar exam, note that modern courts often merge assumption of risk into comparative fault, treating it as a partial reduction rather than a complete bar.
Conclusion
Negligence analysis isn’t about assigning blame — it’s about evaluating reasonableness.
Here, both P and D acted carelessly in different ways. A strong essay shows how a jury could reasonably find for either side, depending on how it weighs foreseeability, breach, and comparative fault.
True legal analysis means arguing both sides with structure, not passion.
