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Negligence: Duty, Breach, Causation, Damages (and the Standards of Care)

How to use this lesson

  1. Duty: was the plaintiff foreseeable? There is no general duty to rescue unless an exception applies (such as a special relationship, a danger the defendant created, or a rescue the defendant began).
  2. Pick the standard of care: the reasonable person by default, or a special standard for professionals, children, landowners or a statute (negligence per se).
  3. Breach: did the conduct fall below that standard? One way: weigh the burden of a precaution against the probability and severity of the harm (B < PL), or ask whether res ipsa loquitur lets the jury infer breach.
  4. Causation: check actual cause ("but for"), then proximate cause. The type of harm usually must be foreseeable; under the eggshell-plaintiff rule the full extent is recoverable.
  5. Damages: look for actual harm to a person or property. Then check whether the plaintiff's own fault reduces recovery or bars it; pure comparative, modified comparative and contributory negligence rules vary by state.
  6. Set a 5-minute timer for the four practice questions. A few days later, redo the misses with the cards (spaced repetition).

Sources: negligence, reasonable person, res ipsa loquitur, proximate cause, negligence per se, eggshell skull rule and comparative negligence (Cornell LII Wex); United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) (CourtListener), checked 2026-10-24.

Answer first: To win a negligence claim, the plaintiff must prove four things: (1) the defendant owed a duty of care, (2) the defendant breached it, (3) the breach caused the harm, both actually and proximately, and (4) the plaintiff suffered real damages. On the MBE, the usual default is the reasonable-person standard. Watch for special standards that replace it, such as professionals, children, landowners, and statutes (negligence per se). If the defendant acted to cause the result, or knew it was substantially certain to happen, check the intentional torts lesson as well.

MBE is a trademark of NCBE. Not affiliated with or endorsed by NCBE or any bar-review course. NCBE describes the Multistate Bar Examination on its site (NCBE — MBE — verified 2026-10-24).

Mnemonic note: "D-B-C-D" (Duty, Breach, Causation, Damages) is common shorthand, not LearnFun-invented.

Rule statements

  1. Duty. A duty is generally owed to foreseeable plaintiffs. Variable: in Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928), the majority (Cardozo) limited duty to people in the foreseeable zone of danger. The dissent (Andrews) would extend it to anyone actually harmed, subject to proximate cause. The Cardozo view is the usual exam default.
    • No general duty to rescue, except where there is a special relationship, the defendant created the danger, or the defendant voluntarily began a rescue.
  2. Breach. A breach is conduct that falls below the applicable standard of care. One way to measure it is to weigh the burden of precautions against the probability of harm times its severity (B < PL). United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).
  3. Actual cause. The test is "but for." When several causes would each have been enough on their own, the test is "substantial factor." When two negligent defendants each could have caused the harm and the plaintiff can't tell which did, the burden shifts to the defendants (alternative liability). Summers v. Tice, 33 Cal. 2d 80 (1948).
  4. Proximate cause. The harm must be a foreseeable type of harm. Under the eggshell-plaintiff rule, the defendant takes the plaintiff as found, so the full extent of the injury is recoverable. Foreseeable intervening forces (such as medical malpractice or rescuers) don't break the chain. Superseding criminal acts usually do, unless the defendant's negligence made that crime foreseeable.
  5. Damages. The plaintiff must show actual harm. Nominal damages aren't available in negligence. Pure economic loss is generally not recoverable without injury to person or property. Whether a promise is enforceable at all is a contract question; see the contract formation lesson.

The standards of care

Common traps

Memory hook and cards

Sticky line: Did Bob Cause Damage? It carries the common D-B-C-D order: Duty, Breach, Causation, Damages.

One-line joke: "I tried my best." The reasonable person: "Objectively, no."

Spaced-rep cards

# Front Back
1 D-B-C-D expands to? Duty, Breach, Causation (actual and proximate), Damages. Sticky line: Did Bob Cause Damage?
2 B < PL means? Breach if the burden of a precaution is less than the probability of harm times its severity (Hand formula, Carroll Towing).
3 Negligence per se needs? A violated statute, a plaintiff in the class it protects, and harm of the type it targets.
4 Type or extent: which must be foreseeable? The type. The full extent is recoverable (eggshell plaintiff).
5 Res ipsa loquitur needs? An accident that doesn't normally happen without negligence, in the defendant's exclusive control, that the plaintiff didn't cause.

Timed practice questions (original)

Timer: 5 minutes. Made-up facts. Set a timer and answer all four before you read any key. Write down every miss and why you missed it.

Q1. A 15-year-old rode a motorized jet ski on a lake and struck a swimmer. In the swimmer's negligence suit, what standard of care applies to the teen? (A) That of a reasonable 15-year-old of similar intelligence and experience. (B) That of a reasonable adult, because operating a motorized watercraft is an adult activity. (C) No standard, because minors can't be negligent. (D) Strict liability, because jet skis are abnormally dangerous. Answer: B. Children who engage in adult, often motorized, activities are held to the adult standard. (A) is the general child standard, which doesn't apply here. (C) is wrong because minors can be negligent. (D) is wrong because jet-skiing isn't an abnormally dangerous activity.

Q2. A city ordinance requires that dogs be leashed in order to prevent dog bites. An unleashed dog runs into a cyclist, who falls and breaks a wrist. Does negligence per se apply? Answer: Probably not. The ordinance targets bites, and the cyclist suffered a collision injury, which is a different type of harm. The cyclist can still try to prove ordinary negligence.

Q3. A crate falls from a dockside crane onto a pedestrian on the public walkway below. Only the dock company's operator ran the crane that day, nobody saw why the crate dropped, and the pedestrian was just walking past. Can the pedestrian get breach to the jury without proof of exactly what went wrong? Answer: Yes, through res ipsa loquitur. Crates don't usually fall from cranes without someone's negligence, the crane was in the dock company's exclusive control, and the pedestrian did nothing to cause the drop. The jury may infer breach, as in Byrne v. Boadle, where a flour barrel fell from a shop window. The company can still offer evidence that it was careful.

Q4. Trap. A driver negligently rolls a stop sign at 5 mph and bumps a stopped car. The passenger in that car has a rare bone condition and breaks a hip, an injury a typical passenger wouldn't have suffered. The driver argues there's no proximate cause because nobody could foresee a broken hip from a 5 mph bump. Who wins on proximate cause? (A) The driver, because the severity of the injury was unforeseeable. (B) The passenger, because injury from a collision is a foreseeable type of harm and the driver takes the passenger as found. (C) The driver, because the bone condition is a superseding cause. (D) The passenger, but only for the harm a typical passenger would have suffered. Answer: B. The trap is mixing up type with extent. Proximate cause asks whether the type of harm was foreseeable, and physical injury from a car crash is. Under the eggshell-plaintiff rule the driver is liable for the full extent, so (A) and (D) are wrong. (C) is wrong because a condition the plaintiff already had isn't an intervening force at all. D-B-C-D: this is the C (causation) step.

Next lessons

Intentional torts · Bar exam mnemonics under the clock · Why smart people fail the bar

Sources

Last checked: 2026-10-24