THE FIVE ELEMENTS OF NEGLIGENCE

11/14/2007 2:25:46 PM 1671 Volume 35, No. 4 Summer 2007 THE FIVE ELEMENTS OF NEGLIGENCE David G. Owen* After centuries of glacial development in the English forms of action, NEGLIGENCE law in America began to take shape during the 1830s and 1840s as a general theory of liability for carelessly caused harm. Conveniently (if roughly) dated to Chief Judge Shaw s 1850 decision in Brown v. Kendall,1 NEGLIGENCE emerged as a distinct tort sometime during the middle of the nineteenth The essence of the tort was that a person should be subject to liability for carelessly causing harm to Also essential to NEGLIGENCE , evident from an early date, was the necessity of a causal connection between the defendant s breach of duty and the plaintiff s damage that was natural, probable, proximate, and not too As early courts and commentators explor

The standard four-element account of negligence—as duty, breach, cause, and damage—misleadingly conflates two distinct ideas that too ... “duty,” “failure to exercise reasonable care,” “factual cause,” “physical harm,” and “harm within the scope of liability (which historically has been called ‘proximate cause’).”

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  Standards, Care, Negligence

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