The tort of negligence is simply defined as “the failure to exercise reasonable care.” However, for a plaintiff to prevail under a negligence claim he must allege and prove facts establishing ALL five of the legal elements of negligence:

  1. The defendant owed the plaintiff a legal duty
  2. The defendant, by behaving negligently, breached that duty
  3. The plaintiff suffered actual damage;
  4. The defendant’s negligence was an actual cause of this damage and
  5. The defendant’s negligence was a “proximate cause” of this damage

Even if a plaintiff does prove all of the elements, the plaintiff may still not fully recover. Once the plaintiff has proved the elements, the defendant is only subject to liability; not liable (at least not yet). The defendant may still have an adequate affirmative defense which may allow him to escape liability.

In analyzing whether the defendant owed the plaintiff a legal duty it is important to remember that courts have recognized that a duty is owed by all people to “exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others.”

This duty is known as the standard of care. “The standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act and is proportionate to it. The greater the danger, the greater the care which must be exercised.” Stewart v. Motts, 539 Pa. 596 (1995).