First, the defendant must have owed the plaintiff a duty. Second, the defendant must have breached the duty. Third, the breach of that duty must be the actual as well as the legal cause of the plaintiff’s injury. Fourth, that injury must be one that the law recognizes and for which money damages may be recovered.

To win in a suit of negligence, the plaintiff must establish:
1. the existence of a duty,
2. the breach of that duty,
3. injury to the plaintiff, and 4. causation between the negligent conduct and the injury.

First» the plaintiff must prove that the person who is accused of committing the tort owed a duty of care to him. The law limits the scope of the duty of care by applying the reasonable person standard. The reasonable person always does what is right under the circumstances by exercising prudent care, skill，and judgment. The reasonable person standard is a sliding standard that is tapered to a person’s age, training and profession.

Second, the plaintiff has to prove that defendant breached that duty because of negligence. A breach of duty is a failure to act in a manner that a reasonable person would have acted under the same or similar circumstance, or when action was necessary to protect or help another person and a reasonable person would have done so.3 It is the plaintiffs burden to prove that the defendant breached a standard of care.

Third, the plaintiff must prove that he has suffered losses. Negligent conduct alone is not tortious. The negligence must cause some actual loss or damage : without injury, there is no recovery. In negligence cases, the plaintiff has the burden of proving injury and is entitled to compensatory damages.

The final element in aii action for negligence is a close causal connection between the defendant’s conduct &nd the injury that occurred. Causation has two components ： cause in fact and proximate cause. The law determines whether A is the cause in fact of B by raising the question of “whether, but for A, B would not have happened”. This is called “the but for” test. Proximate cause puts the negligent conduct into a broader context by considering all the causes contributing to an injury. It is not necessary for a defendant negligent action to be the sole cause of an injury or even the predominant cause, in order for the defendant to be held liable. One important element of proximate cause is foreseeability: Would the defendant reasonably foresee the injurious results of his or her actions? The law limits the defendant’s reponsibility to immediate or foreseeable harm as opposed to remote or unforeseeable harm.

There are three main defenses to an action in negligence t contributory negligence comparative negligence and assumption of risk. In most states f the burden is on the defendant to establish the defense.

Contributory negligence occurs when the plaintiffs own negligence is successfully asserted. The plaintiff will lose because it absolutely bars the plaintiff’s recovery. In a growing number of jurisdictions, the doctrine of contributory negligence has been replaced by the doctrine of comparative negligence whereby the plaintiff's recovery is diminished by the percentage he or she has contributed to the injury.

The common law developed a doctrine in which the defendant will win if it can be proved that the plaintiff assumed the risk. Assumption of risk completely bars plaintiff’s recovery. Assumption of risk can be either express or implied. Express assumption of risk occurs when the plaintiff agrees in advance that the defendant is not liable for negligent conduct that will injure the plaintiff. These types of agreements are often referred to as exculpatory clauses or waivers. They may be void as against public policy. Implied assumption of risk rises when the plaintiff, with knowledge and appreciation of a particular risk, nevertheless voluntarily chooses to remain exposed to the risk.

Answer the following questions:
1. Outline and explain the elements of negligence.
2. Explain the reasonable person standard.
3. What is cause in fact? How to determine a cause to be cause in fact?
4. What is proximate cause? How is it different from cause in fact?
5. What is foreseeability? How does it affect the defendant9s liability in negligence?
6. What are the common defenses in negligence?
7. Compare contributory negligence and comparative negligence.
8. What is assumption of risk? Explain the two kinds of assumption of risk.
9. Who has the burden of proof in establishing liability in tort claims? And in establishing defenses?
10. Why is the doctrine of comparative negligence replacing the doctrine of contributory negligence?