The Five Elements of Negligence

Abstract

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,' negligence emerged as a distinct tort sometime during the middle of the nineteenth century. 2 The essence of the tort was that a person should be subject to liability for carelessly causing harm to another.3 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 plaintiffs damage that was natural, probable, proximate, and not too remote.4 As early courts and commentators explored the developing tort of negligence, they increasingly divided it into its essential pieces-"elements"-centered on a defendant's failure to exercise due care and * Carolina Distinguished Professor of Law, University of South Carolina.Thanks to Aaron Twerski for originating the idea of Ideas, of which this is one, and to Karen Miller for research and editorial assistance.1. 60 Mass.(6 Cush.) 292 (1850).

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