UBE Negligence: Duty and Breach
Last updated: May 2, 2026
Negligence: Duty and Breach questions are one of the highest-leverage areas to study for the UBE. This guide breaks down the rule, the elements you need to recognize, the named traps that catch most students, and a memory aid that scales to test day. Read it once, then practice the same sub-topic adaptively in the app.
The rule
To establish negligence, a plaintiff must prove duty, breach, causation (actual and proximate), and damages. Duty is generally owed to all foreseeable plaintiffs within the zone of danger created by the defendant's conduct (the Cardozo majority view in Palsgraf), and the standard of care is that of a reasonably prudent person under the same or similar circumstances (Restatement (Second) of Torts § 283; Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3). Breach occurs when the defendant's conduct falls below that standard — measured either by the Hand formula (B < PL), by custom, by statute (negligence per se), or by res ipsa loquitur. Special relationships, undertakings, and statutes can create affirmative duties to act where the common law otherwise imposes none.
Elements breakdown
Prima Facie Negligence
A plaintiff must prove four elements to recover for negligence.
- Duty owed by defendant to plaintiff
- Breach of that duty
- Actual cause (cause in fact)
- Proximate cause (legal cause)
- Damages (actual harm)
Duty — General Rule (Cardozo Majority)
A defendant owes a duty of reasonable care to all foreseeable plaintiffs within the zone of danger created by the defendant's conduct.
- Plaintiff foreseeably endangered by conduct
- Plaintiff within zone of foreseeable risk
- Defendant's act created the risk
Common examples:
- Andrews minority view: duty owed to anyone in fact harmed, regardless of foreseeability
Reasonable Person Standard
The default standard of care is that of a reasonably prudent person acting under the same or similar circumstances.
- Objective standard, not actor's subjective beliefs
- Same or similar circumstances considered
- Physical disabilities incorporated into standard
- Mental disabilities generally not incorporated
- Superior knowledge or skill held to higher standard
Professional Standard of Care
Professionals must exercise the knowledge and skill of an ordinary member of the profession in good standing.
- Knowledge and skill of ordinary professional
- Exercised in good standing in the profession
- National standard for board-certified specialists
- Customary practice often dispositive
Common examples:
- Doctors, lawyers, accountants, architects
Child Standard of Care
Children are held to the standard of a child of like age, intelligence, and experience.
- Subjective: child's actual age
- Subjective: child's actual intelligence
- Subjective: child's actual experience
- Exception: adult standard when engaged in adult or inherently dangerous activity
Affirmative Duties to Act
There is no general duty to rescue or aid a stranger; affirmative duties arise only in defined circumstances.
- Special relationship (parent-child, common carrier-passenger, innkeeper-guest, employer-employee, custodian-charge)
- Defendant created the peril
- Defendant voluntarily undertook to rescue
- Statute imposes duty
- Contractual obligation to act
Landowner Duties (Traditional Categories)
At common law, the landowner's duty depends on the entrant's status; many jurisdictions retain these categories on the bar exam.
- Trespasser (undiscovered): no duty except no willful/wanton harm
- Trespasser (discovered or anticipated): warn of known artificial conditions posing serious harm
- Licensee (social guest): warn of known dangers not obvious
- Invitee (business visitor): reasonable care including duty to inspect
- Child trespasser: attractive nuisance — reasonable care if owner knows or should know of dangerous artificial condition
Breach — Hand Formula
Conduct is unreasonable when the burden of taking precautions is less than the probability of harm multiplied by the magnitude of the loss (B < PL).
- B = burden of precaution
- P = probability of harm
- L = magnitude of loss if harm occurs
- If B < PL, failure to take precaution is breach
Breach — Negligence Per Se
Violation of a statute conclusively establishes breach (in most jurisdictions) when the statute's protective purpose covers the plaintiff and the harm.
- Defendant violated a statute
- Plaintiff is in class statute meant to protect
- Harm is type statute meant to prevent
- Violation was unexcused
- Causation and damages still required
Breach — Res Ipsa Loquitur
Permits an inference of breach from the mere occurrence of the harm when direct evidence is unavailable.
- Accident type does not ordinarily occur without negligence
- Instrumentality was in defendant's exclusive control
- Plaintiff did not contribute to the harm
- Evidence more accessible to defendant
Breach — Custom Evidence
Industry or community custom is admissible as evidence of the standard of care but is not conclusive.
- Custom is relevant evidence of reasonableness
- Compliance with custom does not preclude liability
- Departure from custom does not require liability
- Court may find entire industry's custom unreasonable
Common patterns and traps
The Unforeseeable Plaintiff (Cardozo Trap)
The defendant clearly behaved carelessly toward someone, but the plaintiff is outside the foreseeable zone of danger. Under the Cardozo majority rule, no duty is owed and the negligence claim fails at the duty element. The exam dangles sympathetic facts and breach-heavy descriptions to lure you into finding liability without checking duty first.
An answer choice saying 'Yes, because the defendant was negligent in handling the package' — focusing on breach while ignoring that the plaintiff was an unforeseeable bystander far from the careless act.
The No-Duty-to-Rescue Sympathy Pull
Facts depict a stranger in peril and a defendant who could easily help but does not. The common law imposes no general duty to rescue, and the bar tests whether you can resist the moral pull. You must look for a special relationship, created peril, voluntary undertaking, statute, or contract before imposing liability.
An answer choice saying 'Yes, because a reasonable person would have called for help' — applying the reasonable-person standard before establishing that any duty existed at all.
The Wrong Standard of Care
The defendant is a professional, child, or specially situated actor, and the wrong-answer choice applies the generic reasonable-person standard. The correct analysis substitutes the professional standard, the child standard, or the landowner-category standard before evaluating breach.
An answer choice saying 'No, because the defendant acted as a reasonably prudent person would have' when the defendant is a surgeon being judged against the standard of a similarly situated specialist.
Negligence Per Se Misfire
The defendant violated a statute, but the plaintiff is not within the class the statute was designed to protect, or the harm is not the type the statute was designed to prevent. Negligence per se does not apply, and breach must be established under the ordinary reasonable-person standard.
An answer choice saying 'Yes, because the defendant's statutory violation establishes breach as a matter of law' when the statute's protective purpose does not cover the plaintiff or the harm.
Custom Conflated With Standard of Care
The defendant complied with industry custom, and a wrong-answer choice treats that compliance as conclusive proof of due care. Custom is evidence of reasonableness but never dispositive — the factfinder may still find the entire industry's practice unreasonable (the T.J. Hooper principle).
An answer choice saying 'No, because the defendant followed the universal practice of the industry' — treating custom as a complete defense rather than as one piece of evidence.
How it works
Start every negligence question by identifying the duty owed and the standard of care, because the wrong choice of standard guarantees a wrong answer. If the defendant is a doctor, lawyer, child, or landowner, the standard shifts before you ever reach breach. Suppose Reyes, driving 15 mph over the speed limit, strikes a pedestrian crossing mid-block: the speeding statute supplies negligence per se if pedestrian safety is within its protective purpose, satisfying breach without a Hand-formula analysis. Conversely, if Reyes is a surgeon performing a novel procedure, the question is whether she met the standard of an ordinary member of her specialty in good standing, often proven through expert testimony about custom. When facts show no general duty to act — say, Liu watches a stranger drowning — look for a triggering circumstance (special relationship, voluntary undertaking, peril Liu created) before imposing liability. The bar exam loves to dress up a no-duty fact pattern as a sympathy case; you must resist the result-oriented pull and identify the doctrinal hook.
Worked examples
Under the majority rule, will Patel prevail on her negligence claim against the railroad?
- A Yes, because the attendant breached his duty of care by carelessly handling Reyes's boarding, and that breach was the actual cause of Patel's injury.
- B Yes, because the railroad as a common carrier owes the highest duty of care to all persons on its premises, including Patel.
- C No, because Patel was not a foreseeable plaintiff within the zone of danger created by the attendant's conduct. ✓ Correct
- D No, because the explosion was an unforeseeable intervening cause that breaks the chain of proximate causation.
Why C is correct: Under the Cardozo majority view, duty is owed only to foreseeable plaintiffs within the zone of danger created by the defendant's conduct. The attendant's careless handling of Reyes's parcel created a foreseeable risk to Reyes and perhaps to those near the boarding area, but Patel — standing 30 feet away with a falling scale — was outside the foreseeable zone of danger. With no duty owed to Patel, her negligence claim fails at the first element regardless of how clearly the attendant was careless toward Reyes.
Why each wrong choice fails:
- A: This answer focuses on breach and actual cause but skips the duty element. Under Cardozo, breach toward Reyes does not create liability to Patel, who was an unforeseeable plaintiff. Right rule for breach, wrong starting point for the analysis. (The Unforeseeable Plaintiff (Cardozo Trap))
- B: While common carriers do owe a heightened duty of care to passengers, that duty still extends only to foreseeable plaintiffs within the zone of danger. The 'highest duty' label does not eliminate the foreseeability requirement; it raises the standard within the class to whom duty is already owed. (The Wrong Standard of Care)
- D: This answer misidentifies the doctrinal failure as proximate causation rather than duty. Under the Cardozo majority approach the case fails at the duty step because Patel was unforeseeable; the Andrews minority would frame the same problem as proximate cause, but the call asks for the majority rule.
Will Okafor prevail on his negligence claim against Liu?
- A Yes, because a reasonable person in Liu's position would have at least called for help, and her failure to do so was a breach of duty.
- B Yes, because Liu's awareness of Okafor's peril and her ability to summon aid without risk to herself created a duty to act.
- C No, because the common law imposes no general duty to rescue or aid a stranger absent a special relationship, undertaking, or other recognized trigger. ✓ Correct
- D No, because Okafor's injuries were caused by the slip and fall, not by Liu's failure to act, so causation is not satisfied.
Why C is correct: The common law recognizes no general duty to rescue or aid a stranger; an affirmative duty to act arises only when a special relationship exists, the defendant created the peril, the defendant voluntarily undertook a rescue, a statute imposes the duty, or a contract obligates action. None of those triggers is present here — Liu and Okafor are strangers, Liu did not cause his fall, and she undertook nothing. Without a duty, the negligence claim fails at the first element no matter how morally culpable Liu's inaction may seem.
Why each wrong choice fails:
- A: This answer applies the reasonable-person standard before establishing that any duty existed. The reasonable-person standard measures breach, not duty; you cannot reach breach when no duty to act has been triggered in the first place. (The No-Duty-to-Rescue Sympathy Pull)
- B: Awareness of peril and ability to help, without more, do not create a duty under the common law. Some jurisdictions have adopted limited duty-to-rescue statutes, but the majority rule on the bar requires a recognized trigger such as a special relationship or created peril. (The No-Duty-to-Rescue Sympathy Pull)
- D: This answer reaches the right outcome with the wrong reasoning. The negligence claim does fail, but at the duty element — not at causation. If Liu had been under a duty to act, her failure to call for help during the critical window plausibly would satisfy actual causation as a but-for contributor to the brain damage.
What is the strongest basis on which the parents can establish breach of duty?
- A The Hand formula, because the burden of installing a proper gate was less than the probability of drowning multiplied by the magnitude of the loss.
- B Negligence per se, because Patel's unexcused violation of the ordinance establishes breach as a matter of law. ✓ Correct
- C Res ipsa loquitur, because drownings of small children in private pools do not ordinarily occur without negligence by the pool owner.
- D The reasonable-person standard, because a reasonably prudent pool owner would have installed adequate fencing regardless of the ordinance.
Why B is correct: Negligence per se applies when (1) the defendant violated a statute or ordinance, (2) the plaintiff is in the class the statute was meant to protect, (3) the harm is the type the statute was meant to prevent, and (4) the violation was unexcused. The ordinance expressly identified small children wandering onto private property as the protected class and drowning as the harm to be prevented; Patel's violation was unexcused. Breach is established as a matter of law, which is doctrinally stronger than the Hand formula or the general reasonable-person inquiry.
Why each wrong choice fails:
- A: The Hand formula is a valid framework for breach, but it is a fact-bound balancing test that requires the jury to weigh burden against expected loss. Negligence per se establishes breach as a matter of law, eliminating the need for that balancing — it is the stronger basis when the statutory predicate is satisfied.
- C: Res ipsa loquitur applies when direct evidence of negligence is unavailable and the plaintiff must rely on circumstantial inference from the nature of the accident. Here the parents have direct evidence of the breach: the unlatched, undersized gate violating a specific ordinance. Res ipsa is unnecessary and weaker than negligence per se.
- D: While the reasonable-person standard would also support a breach finding, it requires the jury to evaluate Patel's conduct against an external benchmark and reach a verdict of unreasonableness. Negligence per se shortcuts that inquiry by treating the unexcused statutory violation as conclusive proof of breach — a stronger and more efficient basis when the statute fits. (Negligence Per Se Misfire)
Memory aid
DBCD for the prima facie case (Duty, Breach, Causation, Damages). For affirmative duties, remember 'SCRUMP' — Special relationship, Created peril, Rescue undertaken, statUte, Master-servant (employer), Promise/contract.
Key distinction
The Cardozo/Andrews split on duty: under Cardozo (majority), duty extends only to foreseeable plaintiffs within the zone of danger; under Andrews (minority), duty extends to anyone actually harmed. Bar answers asking 'does defendant owe plaintiff a duty?' almost always test Cardozo — if the plaintiff is unforeseeable, there is no duty and the negligence claim fails at the first element regardless of how clearly the defendant was careless toward someone else.
Summary
Negligence requires duty, breach, causation, and damages — but the bar exam wins or loses on whether you correctly identify the standard of care and any affirmative-duty trigger before you ever reach breach.
Practice negligence: duty and breach adaptively
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Start your free 7-day trialFrequently asked questions
What is negligence: duty and breach on the UBE?
To establish negligence, a plaintiff must prove duty, breach, causation (actual and proximate), and damages. Duty is generally owed to all foreseeable plaintiffs within the zone of danger created by the defendant's conduct (the Cardozo majority view in Palsgraf), and the standard of care is that of a reasonably prudent person under the same or similar circumstances (Restatement (Second) of Torts § 283; Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3). Breach occurs when the defendant's conduct falls below that standard — measured either by the Hand formula (B < PL), by custom, by statute (negligence per se), or by res ipsa loquitur. Special relationships, undertakings, and statutes can create affirmative duties to act where the common law otherwise imposes none.
How do I practice negligence: duty and breach questions?
The fastest way to improve on negligence: duty and breach is targeted, adaptive practice — working questions that focus on your specific weak spots within this sub-topic, getting immediate feedback, and revisiting items you missed on a spaced-repetition schedule. Neureto's adaptive engine does this automatically across the UBE; start a free 7-day trial to see your sub-topic mastery climb in real time.
What's the most important distinction to remember for negligence: duty and breach?
The Cardozo/Andrews split on duty: under Cardozo (majority), duty extends only to foreseeable plaintiffs within the zone of danger; under Andrews (minority), duty extends to anyone actually harmed. Bar answers asking 'does defendant owe plaintiff a duty?' almost always test Cardozo — if the plaintiff is unforeseeable, there is no duty and the negligence claim fails at the first element regardless of how clearly the defendant was careless toward someone else.
Is there a memory aid for negligence: duty and breach questions?
DBCD for the prima facie case (Duty, Breach, Causation, Damages). For affirmative duties, remember 'SCRUMP' — Special relationship, Created peril, Rescue undertaken, statUte, Master-servant (employer), Promise/contract.
What's a common trap on negligence: duty and breach questions?
Applying the reasonable-person standard to a professional or child
What's a common trap on negligence: duty and breach questions?
Imposing an affirmative duty without a triggering relationship or undertaking
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