What is the basis for the cause of action in negligence?
A. There is no cause of action in negligence unless and until a plaintiff has suffered an injury. There are three basic elements of liability: the existence of a common law duty of care, a breach of that duty of care, and a causal relationship between that breach and the plaintiff’s injury. Liability for any consequential injury is governed by the principle of remoteness. The existence of a contractual relationship between the plaintiff and a defendant may be relevant to proximity or foreseeability in determining whether a common law duty of care arises. However, a duty which is both concurrent and co-extensive with a common law duty of care which arises under the law of negligence, will not be required to be incorporated into a contract unless that contract contains an express condition.
