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 7

That Odious Character: The Reasonable Person

INTRODUCTION

Surely the most common basis for tort liability is negligent conduct. This chapter is about the meaning of negligence.

Let's begin by clarifying our terminology. Courts often speak of a “claim for negligence.” In this sense, negligence is a tort with four elements: (1) a duty of reasonable care, (2) breach of that duty, (3) causation, and (4) resulting damages. A plaintiff must prove all four of these elements to “recover on a claim for negligence.” But courts also use the term “negligence” in a related but more limited sense, to refer to the failure to live up to the standard of due care. In this sense, “negligence” refers to the second element of a claim for negligence, breach of the standard of due care. To say that the defendant “was negligent” is to say that he failed to exercise reasonable care under the circumstances.

Since courts do not always distinguish these two meanings of “negligence,” students often get confused between the tort of negligence and the concept of negligence as a breach of the standard of due care. A defendant may be negligent without necessarily being “liable for negligence” (if, for example, the plaintiff does not suffer damages from the defendant's failure to exercise due care). It is important to distinguish the tort of negligence from the second element of that tort. This chapter is about the latter meaning, the failure to live up to the standard of reasonable care.

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