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To recover for negligence a plaintiff must establish each of the following by a preponderance of the evidence
- that there was a duty — a legally recognized relationship between the parties
- the standard of care at issue — the required level of expected conduct
- a breach of the duty owed by failing to meet the standard of care
- that the defendant's conduct was the cause in fact and proximate cause of the plaintiff's harm, and
- that the plaintiff suffered a cognizable injury, or damages.
A defendant can also be found negligent per se by violating a statute or regulation if the plaintiff can show that (1) the defendant violated the statute, (2) the statute is a safety statute, (3) the act caused the kind of harm the statute was designed to prevent, and (4) the plaintiff was within the zone of risk. In some jurisdictions, negligence per se creates merely a presumption of negligence.
Defenses to a negligence claim include the following: