Lawyers can recite from memory the elements of a negligence cause of action: duty, breach, causation and damages. However, what many practitioners fail to appreciate is that the order of the elements is critical to any claims analysis. Only by first defining the scope and extent of an alleged duty can one determine whether that duty was breached by a defendant, or if liability was truncated by a superseding or intervening cause.
It is all too common for litigants to argue that an intervening cause “cuts off” a defendant’s duty to the plaintiff. In fact, before considering the effect of an intervening cause, a court must first determine that the defendant owed a duty to the plaintiff and breached that duty; in essence, finding that the defendant was, in fact, negligent but that the negligent conduct did not cause the plaintiff’s injury.
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