Chapter 1-10 Negligence

• Jurisdiction: United States

1-10 Negligence

1-10:1 Introduction

Negligence actions are often pleaded in a commercial litigation setting, and often run into difficulty in Texas in pure economic loss cases (unaccompanied by injury to person or tangible property) because of the economic loss rule, although numerous exceptions and limitations to the economic loss rule exist (such as for negligence occurring in the setting of professional relationships).²⁸⁵

1-10:1.1 Related Causes of Action

DTPA, Legal Malpractice, Negligent Entrustment, Negligent Hiring, Negligent Misrepresentation, Negligent Undertaking

1-10:2 Elements

(1) Defendant owed a legal duty of care to the Plaintiff.²⁸⁶

• "Every person has a duty to exercise reasonable care to avoid a foreseeable risk of injury to others."²⁸⁷
• Courts apply a balancing test in determining whether a legal duty exists under common law, considering the risk, foreseeability, and likelihood of injury, weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.²⁸⁸
• The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question.²⁸⁹
• All that is required for foreseeability is [1] "that the injury be of such a general character as might reasonably have been anticipated; and [2] that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen."²⁹⁰
• In determining duty the court may also consider "whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm."²⁹¹
• In some cases a duty will exist as a matter of law based upon the existence of a special relationship.²⁹²

(2) Defendant breached the duty of care to the plaintiff.²⁹³

• In determining whether a party exercised the ordinary prudence expected under the same or similar circumstances, it is appropriate to consider any knowledge, skill, or even intelligence superior to that of the ordinary person and whether the party acted in accordance with those circumstances.²⁹⁴

(3) Damages to the plaintiff proximately resulted from the breach.²⁹⁵

• Proximate cause has two elements: cause in fact and foreseeability. The test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. If the defendant's negligence merely

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