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There is currently an unsolved problem in the legal literature regarding the role cost-benefit analysis should play in determinations of breach in negligence cases. Additionally, despite extensive writings, the relationship between duty and breach in negligence cases remains unclear. At the core of the problem lies the inadequacy of our understanding of breach, which, currently established through a number of independent constructs, lacks a fundamental conceptual base. Further complicating matters is the limited study afforded the nature of the negligence cause of action itself, which leaves the element of duty on unsound footing. This article fills those gaps. With an eye towards analyzing breach, it first provides a framework for understanding the negligence cause of action and duty. It then argues that an actor’s given conduct is in negligent breach of a duty if (and only if) a reasonable person would have foreseen the nonattainment of the result of that duty, and a cost-benefit analysis weighed against the actor. This article concludes with an application to the oft-maligned element of proximate cause. Proximate cause in the negligence cause of action being fundamentally linked to breach, this article clarifies some of the uncertainty around proximate cause using its duty/breach framework.
Garo V. Moughalian,
Understanding the Negligence Question,
Lincoln Mem’l U. L. Rev.
Available at: https://digitalcommons.lmunet.edu/lmulrev/vol9/iss1/7