Claims Law and Liability Assessment
Liability assessment asks whether a claimant can establish the legal elements against a party, and how much the party is likely to owe. In negligence, those elements are duty, breach, causation, and damages. Duty is a legal question; breach and causation are usually factual. Causation has two parts: actual cause, often expressed as but-for cause, and proximate cause, which asks whether the harm was a foreseeable result rather than an extraordinary consequence. Defenses include comparative or contributory negligence, assumption of risk, and statutes of limitation. Contract claims require breach of a contractual promise, while tort claims focus on a civil wrong; the two may coexist, but damages and defenses differ. Subrogation lets the insurer stand in the insured’s shoes after payment, but only to the extent of payment and subject to defenses that would have been available against the insured.
Question traps: treating res ipsa loquitur as automatic liability; confusing joint-and-several liability with comparative fault; ignoring an intervening cause; assuming a contractual indemnity clause covers every loss; and missing that an additional insured’s protection may be narrower than the named insured’s. Also watch for statutory deadlines and notice requirements.
Worked example: a customer slips on a wet floor. The store owed a duty to invitees. Breach depends on evidence-how long the spill existed, whether staff had notice, and whether reasonable inspection would have found it. If the customer was distracted and ignored a visible cone, comparative fault may reduce recovery. Even with breach, the claimant must show the fall caused identifiable damages. Rule of thumb: assess each element with evidence, then apply defenses and damages; do not reason backward from sympathy or from a large demand.