Chapter 4

Introduction to Negligence
 Chapter Objectives:
 Explain the four elements of negligence
action
 Explain how negligence is different from
other forms of torts
 Describe how a new file is created
 Explain the methods used to gather
information from the client
 Identify the important features found in a
negligence complaint
Tort Law for Paralegals, Fifth Edition
(c) 2016 by Neal R. Bevans
 Negligence: What Makes it
Different?
 In a negligence action, the plaintiff is not
claiming that the defendant intentionally
injured him.
 Instead, the plaintiff is claiming that his
injuries are the result of the defendant’s
carelessness, failure to pay attention or
failure to take adequate measures to protect
others

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
The History of Negligence

 The 20th Century saw dramatic social,

economic and legal changes and
provided the backdrop for the
development of negligence law.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
The Four Elements of
Negligence
In any negligence claim, the plaintiff must
prove four elements:
 Duty
 Breach
 Causation
 Damages

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Duty

 the plaintiff must prove that the

defendant owed a duty to the plaintiff

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Breach

 Once the plaintiff has proven that the

defendant owed a duty, the plaintiff must
prove how the defendant’s actions
breached that duty.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Causation

 the plaintiff must prove that there is a

factual connection between what the
defendant did (or failed to do) and the
resulting injuries to the plaintiff.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Proximate Cause

 This connection is referred to as

proximate causation.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Damages

 the plaintiff must still prove some form of

physical or financial loss as a direct
result of the defendant’s actions (or
failure to act).

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
 The Lawyers who Represent
Plaintiffs and Defendants
 Plaintiffs’ lawyers and defendants’ lawyers
have different financial arrangements with
their clients, have different strategies and
frequently have firms that are structured in
dramatically different ways.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Becoming a Lawyer

 To become a lawyer, a person must

attend and successfully graduate from a
law school and pass an examination
called the Bar Exam.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
The ABA

 In order to sit for the bar exam, a student

must graduate from an American Bar
Association-approved law school.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
The Economics of Law

 A firm understanding of the economics of

law firms is helpful to any paralegal
student.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Partnerships

 Partners split the profits of the law firm

once everyone else has been paid.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Associate Attorneys

 An associate is usually a relatively new

lawyer who is hired to work for the firm.
 This associate earns a set salary.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Plaintiff’s Firms

 A plaintiff’s firm is in the business of

representing people who may have a
claim for injuries against someone else.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Contingency Fees

 Plaintiff’s firms are normally paid out of

the ultimate settlement in the case.
 Many firms charge a standard rate (33%
of the total recovery, for instance).

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
 Defense Firms
 Insurance companies regularly pay the fees
for firms that specialize in defense work.
 Many firms have standing arrangements with
insurance companies that they will represent
all people in a geographic area who are sued.
 These attorneys normally charge an hourly
rate, as opposed to the contingency fee
arrangement followed by most plaintiffs’ firms.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Contracting with a Law Firm

 When a client engages a law firm

 whether to represent him as a plaintiff in
a suit
 or to defend him in a suit
 the firm will enter into a contract with that
client.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Contract in the Chumley Case

 Please view the representation contract

for the Chumley case which is presented
in your text.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Obtaining Information from the
Client
 Review the Client Questionnaire in
Figure 4-7 for an extensive list of
questions that should be asked of
clients, regardless of whether the firm
represents plaintiffs or defendants.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Authorizations from the Client

 A medical authorization is a legal

document that allows the firm to get
copies of the client’s medical or other
records.

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Other Information from the
Client: Facts and Photos
 Does the client know of any witnesses to
the collision?
 Has anyone taken photos of the car the
client was driving?
 Does the client know if the local press
did a story about the wreck?

Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans