Ryan Hodge, J.
This article is intended to be a primer on the basic case law related to negligence in Kansas. The article outlines the basic elements of a negligence case. We start with the law related to determining whether a duty exists. The article next discusses law related to determining what that duty is if it exists and whether that duty has been breached. The article then moves into a discussion on proximate cause and cause in fact. The article does not address statutes or case law related to the types of damages that may be recovered in a negligence action. “Every person must so use his property as not to injure the rights of others.”
In negligence cases, “duty” has been defined as ”an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” A tort is a violation of a duty imposed by law. The familiar elements of duty, breach, causation and damages must be present in every tort claim.
In a car wreck case, the plaintiff's four proof elements are “the determination of what a reasonably prudent driver would do under particular circumstances, whether a driver acted in a manner consistent with that standard, and [w]hether there is a causal connection between the breached duty and the injuries sustained [are] question[s] of fact."
The tort of “[n]egligence is a violation of the obligation which enjoins care and caution in what we do.” Stated another way by the same court, [t]he above doctrine, in its practical application, would probably be better expressed in these words: Every person, in his intercourse with others, is required to exercise that degree of care and diligence to protect his own rights and to avoid injury to the rights of others, which an ordinarily careful and prudent man usually exercises in his own affairs. The rule thus expressed is of almost universal application.
This definition is over 100 years old. It is the essence of the modern definitions of negligence. Negligence is that conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.
The standard of conduct to which an individual must conform to avoid being negligent is that of a reasonable person under like circumstances.
The definition is similar under current Kansas law and our jury instructions.
Negligence is the lack of ordinary care under the existing circumstances. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all of the circumstances then existing. The degree of care must be equal to the danger reasonably to be anticipated, measured by all of the facts and circumstances.10
Negligence is the lack of reasonable care. It is the failure of a person to do something that a reasonable person would do, or doing something that a reasonable person would not do, under the same circumstances.11
A plaintiff in a negligence action must prove four elements: what is the duty owed by the defendant to the plaintiff, breach of that duty, causation between the breach of the duty and injury to the plaintiff and damages suffered by the plaintiff.12
Does a duty exist?
The existence of a legal duty is a question of law. At its most basic level all duties are a duty of care and safety, the duty of care in most circumstances is what a “reasonable man [of ordinary prudence]” would do in the like factual circumstances. c. Standard of the "reasonable man." Negligence is a departure from a standard of conduct demanded by the community for the protection of others against unreasonable risk. The standard which the community demands must be an objective and external one, rather than that of the individual judgment, good or bad, of the particular individual. It must be the same for all persons, since the law can have no favorites; and yet allowance must be made for some of the differences between individuals, the risk apparent to the actor, his capacity to meet it, and the circumstances under which he must act.14
Courts do make this general duty of care and safety more specific. For examples, the duty of a governmental entity is to maintain its highways in a reasonably safe condition.15 A proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by a business invitee in a reasonably safe condition.16
A court can determine that a statute has created a legal duty. In Shirley v. Glass,17 the court found that a statute created a private cause of action, that is, a legal duty of care and safety.
A court can also determine that a legal duty exists in a particular circumstance. For example, in Russell v Braden,18 the court recognized that a parent had a duty to control a child to prevent intentional harm and unreasonable risk of bodily harm to others.
When a duty is created by statute, the violation of that statute is negligence per se. The elements of negligence per se are (1) a violation of a statute, ordinance, or regulation, and (2) the violation being the cause of the damages. In addition, a plaintiff must establish that an individual right of action for injury arising out of the violation was intended by the legislature. These principles — violation of a statutory duty, extension of that duty to the circumstances of the plaintiff, and causation — coalesce in the familiar circumstance of traffic-safety laws. For example, a plaintiff may use violation of traffic-control statutes to support a claim of breach of a duty in negligence actions involving vehicles. This is true even when the laws do not explicitly create a private cause of action. [Internal citations omitted.] Violations of traffic-safety laws do not, however, impose strict liability on defendants… A plaintiff may thus be able to introduce evidence that a defendant was driving faster than the statutory speed limit. This evidence tends to demonstrate breach of a duty...19
What is the duty owed and was the duty breached?
If a court determines that a duty of reasonable care exists, it then becomes a question of fact as to what that duty of reasonable care and safety is and whether the obligation of reasonable care has been breached. The law favors trial by jury and the right should be carefully guarded against infringements. It is a right cherished by all free people. A trial court, in the exercise of its prerogative in determining questions of law only in these kinds of cases, should not usurp the power and function of the jury in weighing evidence and passing upon questions of fact.20
If a duty exists, then the plaintiff must prove a breach of that duty. There are several ways to breach a duty of care: A. Negligence “either an act, or an omission to act where there is a duty” to act.21
B. Gross negligence, or reckless disregard, or wanton con-duct, is a more egregious breach of a duty than negligence. A tortfeasor is reckless if he/she knew that he/she was creating a high degree of risk, but he/she is indifferent to that high risk.22
C. Intentional tort, willful or deliberate misconduct, with intent to cause harm.
Gross negligence and intentional torts are generally punished more severely than mere negligence. These types of torts will not be discussed in this article.
Prove the Duty Existed, and that there was a Breach of the Duty
The factual proof related to whether a legal duty of care has been violated requires two evidentiary steps. One, it requires evidence of recognized standards, customs and safety rules under all the circumstances then existing. Two, it requires a showing that the duty was breached. In other words, what the duty of care is under the circumstances is a question of fact.24
The contours of a duty, especially one shaped by reasonableness, must be cast to the particular circumstances of the case. But various considerations may inform that determination. There may be applicable statutes or regulations establishing a duty of care. Common practices or standards within an industry often bear on the scope of a duty owed. An entity's own policies and procedures may help measure compliance with a duty.
Estate of Beldon v. Brown County.25
As the Beldon Court indicated, the contours of the duty of care and safety are established several ways. A duty of care and safety can be proven different ways.
A statute or government regulation is intended to prevent the injury that occurred in the case.26 An unexcused violation of a statute or regulation is negligence per...