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2012 Wisconsin Law Review 787 (2012)


This Essay discusses the appropriate significance in tort law of a negligent attempt to perform an injurious activity when the evidence is insufficient to show the actual performance of the activity was negligent. The author calls such a negligent attempt uncoupled with sufficient evidence of negligent performance "preparatory negligence." An example would be driving a car when one is so inebriated that the decision to drive is negligent but those injured in a subsequent accident are unable to show the inebriated driver's actual driving was negligent. The author argues that preparatory negligence alone should never warrant tort liability. Rather, those injured must show negligence in some aspect of the performance of the activity. The least confusing way to describe this rule in terms of the usual elements of negligence liability is to hold that preparatory negligence alone is never a proximate cause of injury. But because a person's preparatory negligence often increases the likelihood that his performance of his activity was negligent, the author describes some circumstances when preparatory negligence provides relevant and admissible evidence of negligent performance and on that ground should come to the attention of the fact finder.

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