Here are some introductory points on the tort of negligence.
The Elements of a Negligence Action –
Remember, the plaintiff usually has the burden of proving the first five, while the defendant has the burden of proving the sixth.
1. Duty of Care (limiting step) – there are policy considerations that can lead to the finding and non finding of a duty of care; this duty of care exists when it is reasonably foreseeable that your actions will have an effect on another person.
2. Standard of Care and its Breach – in most (but not all) negligence actions, the standard of care is the reasonable person standard .
3. Causation – has the breach of the duty of care caused an injury to the plaintiff? But for the breach of the duty of care, would the injury have occurred?
4. Remoteness of Damages (limiting step) – also called legal causation; if the damages are found to be too remote from the breach of the standard of care, then the plaintiff will not win the case.
5. Actual Loss – without loss, the plaintiff will not be successful (as opposed to intentional torts)
6. Defences – voluntary assumption of risk, illegality