Elements of Negligent Tort: Analysis and Remedies

Elements of Negligent Tort: Analysis and Remedies Rahul Parikh BUS670: Legal Environment (MAE1139A) Professor Troy Tureau October 23, 2011

Negligent Tort Elements of Negligent Tort: According to Shenoy (2011, p.26), Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which regulate the conduct of human affairs would do, or doing something, which a prudent, and reasonable, man would not do The essential elements of negligent tort are 1) Duty of reasonable care, 2) Breach of duty of care, 3) Breach was actual, and proximate cause of injury (Mallor et al., 2010, p.168). Tort is what is in the tort books, [but] only thing holding it together, is their binding (Tofaris, 2010, p.13), hence to win a negligence case, plaintiff must prove each of three elements (Mallor et al., 2010, p.168). Duty of reasonable care: According to Negligence law, normally members of society should behave in ways that avoid the creation of unreasonable risks of harms to others. The standard for assessing such conduct is called reasonable care standard, and in most cases, the duty to exercise reasonable care, serves as the relevant duty, for the purpose of a negligence claims first element (Mallor et al., 2010, p.168). Breach of duty: This is the second element of negligent tort, which requires plaintiff to

establish that defendant failed to act as a reasonable person would have acted, thus negligent laws focus on reasonableness of behavior, and leads to a broad range of applications in every day personal life, in business, and personal contexts (Mallor et al., 2010, p.168). Actual and Proximate Cause: This is third element of a negligent tort, which is needed in the court to prove that the defendants conduct is the actual cause of plaintiffs injury. The plaintiff who proves actual cause, has to establish the existence of proximate cause, thus proximate cause assume the existence of actual cause. The concern of proximate cause arises, because sometimes it is unfair to hold a defendant liable for all injuries actually caused by his breach, thus courts typically says that a negligent defendant is liable only for the proximate

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results of his breach. Proximate cause concerns the required degree of proximity or closeness, between the defendants breach, and the injury it actually caused (Mallor et al., 2010, p.176).
Analysis of the concepts, and types of remedies for a tort liability:

Duty of reasonable care: Court holds that the defendant owed the plaintiff, a duty of reasonable care, if the plaintiff was among those who would foresee-ably be at risk of harm, from defendants activities. Duty of reasonable care runs from defendant to plaintiff, meaning that whether the defendant breached the duty or whether the requisite causation link between the defendants breach and the plaintiffs injury is established (Mallor et al., 2010, p.168). If the court concludes that plaintiff was not among those foreseeable at risk, and the defendant did not owe the plaintiffs a duty of reasonable care, than plaintiffs negligence claim is dismissed, for failure to prove required initial element of claim (Mallor et al., 2010, p.169). According to Van Egteren and Smith (2002, p.369), under negligence, determination of liability for damages is a function of the injurers level of care: if injurer meets or exceeds the legal standard of care, as defined by the Court, then injurers liability for damages is zero. Breach of Duty: In order for breach of duty to take place, there must be a duty owed to the plaintiff, and the defendant must be neglect of the duty that he owed. In order to test whether the duty was breached or not, there is a reasonable person test. This test is objective in two senses. First, it compares the defendants actions, with those that a hypothetical person with ordinary prudence and sensibilities would have taken or not under the circumstances. Second, the test focuses on the defendants behavior, rather than on the defendants subjective mental state (Mallor et al., 2010, p.169). This test allows decision to be made on the facts of the case, and for the prosecution, to determine whether there was reasonable foresee-ability of harm. According to Mallor et al. (2010, p.176), even if the defendant has breached a duty, and plaintiff has actually suffered injury, there is no liability for negligence without necessary

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causation link between breach, and injury. Hence causation link involves three issues: 1) was the breach an actual cause of the injury? 2) Was the breach a proximate cause of the injury? 3) What was the effect of any intervening cause, arising after the breach to cause the injury? Thus both actual, and proximate, causes are necessary for a negligence recovery (Mallor et al., 2010, p.176). Actual Cause: According to Mallor et al. (2010, p.176), to determine existence of actual cause, courts employ but for test, which provides that the defendants conduct is the actual cause of plaintiffs injury, when the plaintiff would not have been hurt, but (if not for) was hurt for the defendants breach of duty. For example, David drove car at excessive speed on crowded street, so was unable to stop car in time, to avoid striking, and injure Patrick. Patrick would not have been injured, if not for Davids duty-breaching conduct. Proximate Cause: According to Mallor et al. (2010, p.176), the plaintiff who proves actual cause, has not yet established the causation link necessary to win the case, unless he establishes the existence of proximate cause. Thus according to the court, negligent defendant is only liable, for the proximate result of his breach. Thus Proximate cause concerns the required degree of proximity or closeness between the defendants breach, and the injury it actually caused (Mallor et al., 2010, p.176). Thus it is hard to prove actual causation, and embrace defendant liable, for all injuries caused by the breach of duty. Prosecutors must look for the proximate causation, in determining whether the tort was negligent or not. Hence court says that negligent defendant is liable only for the proximate results of his breach. To resolve the proximate cause, court has not agreed on any appropriate test, because the question is one of social policy. To decide which test to adopt, court must recognize that negligent defendants may be exposed to catastrophic liability by a lenient test for proximate cause, but restrictive test prevents some innocent victims from recovering damages for their

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loses, hence court has responded in various ways to this difficult question. Many courts have adopted a test, under which a defendant who has breached a duty of care is liable only for the natural and probable consequences of his action (Mallor et al., 2010, p.176). While in some negligent cases, the fact that the plaintiff was injured, seems unusual or remote from the defendants breach, despite the existence of an actual causation link, hence presence or absence of proximate cause, becomes a serious contested issue, and depends on how narrowly or broadly the court defines the scope of what is natural, and probable, (Mallor et al., 2010, p.177). Conclusion: Duty of reasonable care, breach of duty of care, and breach was actual, and proximate cause of injury, are three essential elements of negligent tort, and to win the case, one must prove each of three elements of this tort. The beauty of tort law is that it retains an inherent flexibility responsive to societal developments, and new technologies, [but still] courts addresses the essential, and fundamental issues, of duty, breach of duty, causation, and damages, (Sharp, 2007, p.36) to prove negligent tort cases.

Negligent Tort References:

Mallor, J.P., Barnes, A.J., Bowers, T., & Langvardt, A.W. (2010). Business Law: The ethical, global, and ecommerce environment (14th International ed.). New York: Irwin/McGraw Hill. ISBN: 978-0-07-337764-3. Sharp, L. (2007), Foreseeability and Flying T-Shirts: Palsgraf Revisited. Sport Marketing Quarterly, 16(1), 36-37. Retrieved October 22, 2011, from ABI/INFORM Global. (Document ID: 1320884551). http://proquest.umi.com/pqdweb?did=1320884551&sid=6&Fmt=3&clientId=74379& RQT=309&VName=PQD Shenoy, G. (2011). Actionable 'Deficiencies' in medical practice. Journal of Gynecological Endoscopy and Surgery, 2(1), 25-29. Retrieved October 22, 2011, from Research Library. (Document ID: 2474482861). http://proquest.umi.com/pqdweb?did=2474482861&sid=6&Fmt=3&clientId=74379& RQT=309&VName=PQD Tofaris, S. (2010). WHO PAYS FOR THE SUB-CONTRACTOR'S NEGLIGENCE? VICARIOUS LIABILITY AND LIABILITY FOR "EXTRA-HAZARDOUS ACTIVITIES" RE-EXAMINED. The Cambridge Law Journal, 69(1), 13-16. Retrieved October 22, 2011, from Research Library. (Document ID: 1980834891). http://proquest.umi.com/pqdweb?did=1980834891&sid=6&Fmt=6&clientId=74379& RQT=309&VName=PQD Van Egteren, H., Smith, R.T. (2002). Environmental Regulations Under Simple Negligence or Strict Liability. Environmental and Resource Economics, 21(4), 367-396. Retrieved October 22, 2011, from ABI/INFORM Global. (Document ID: 417583371). http://proquest.umi.com/pqdweb?did=417583371&sid=1&Fmt=10&clientId=74379& RQT=309&VName=PQD

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