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29 Harv. L. Rev. 40 (1915-1916)
Negligence

handle is hein.journals/hlr29 and id is 80 raw text is: HARVARD LAW REVIEW NEGLIGENCE N EGLIGENCE is often defined as consisting of a breach of duty. That is wrong. The duty in such a case can be defined only as a duty to use care, i. e., not to act negligently; and to define the duty so, and then to define negligence as consisting of a breach of the duty, is to define in a circle. The misconception has arisen from a failure to distinguish between a negligent wrong, which, like all wrongs, involves a breach of duty, and the negligence itself, which is one element in the wrong. It is true that negligence which in the particular case is not a breach of any legal duty is of no legal importance; but that does not touch the question of its nature as negligence. There are many cases where the law does not require care, where therefore negligence is not legally wrong; but it is none the less negligence. We must have a conception of negligence as it is in itself, independent of the conception of duty, in order that we may use it as a praecognoscendum in the definition of various duties. The subject of this article is the nature of negligence, not duties to use care. There seems to be no difference in respect to its nature between contributory negligence and negligence towards others, which may be tortious. The latter, when wrongful, is a breach of a perfect legal duty owed to some one else, for whose breach an action will lie. The former may be regarded, when it has any legal effect, as a breach of an imperfect legal duty to use care for the safety of one's self or one's belongings in certain cases where some one else has an interest in such safety. The duty is a legal duty, but an imperfect duty only insomuch as no action will lie for its breach. Its sanction consists in the refusal of a remedy which might otherwise have been had for the other party's breach of duty. Negligence is conduct which involves an unreasonably great risk of causing damage. Due care is conduct which does not involve such a risk. Negligence is conduct, not a state of mind. It is most often caused by carelessness or heedlessness; the actor does not advert properly to the consequences that may follow his conduct, and therefore fails to realize that his conduct is unreasonably danger

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