Tort of negligence - Assignment Example

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Question Presented 1. What is the role of the chain of causation in the tort of negligence? A tort is a civil, as opposed to criminal, wrong that is recognized by law as grounds for a lawsuit and is redressed by an award of damages. Smith v. United States, 507 U.S…
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Question Presented What is the role of the chain of causation in the tort of negligence? A tort is a civil, as opposed to criminal, wrong that isrecognized by law as grounds for a lawsuit and is redressed by an award of damages. Smith v. United States, 507 U.S. 197 (1993). The wrong must result in some sort of injury that is compensable by monetary damages. Some of these include: loss of earnings capacity, pain and suffering, and reasonable medical expenses. (Cornell University School of Law, Legal Information Institute). Torts fall into one of three categories, intentional, negligent and strict liability. (Id.). Tort law is considered common law, or state-made law, following Donoghue v. Sullivan, [1932] UKHL 100, 1932 SC 31, [1932] AC 562, [1932] All ER Rep 1, in which the judges found that there is a duty of care toward one’s neighbor. The tort of negligence contains three basic elements. First there is a duty of care, a breach of that duty and an injury caused by that breach. Restatement (Second) of Torts § 552 (1977). As the law of tort evolves, some have argued that there are actually an expanded five elements that require proof of proximate causation and damages for injury. (Owen at 1673). The five elements in current usage are: (1) duty, (2) breach, (3) cause in fact, (4) proximate cause, and (5) harm. (Id.). Here we will discuss the basic three that have been in common usage before state-made law, duty, breach and cause. The duty of care is a type of social contract that imposes a certain degree of responsibility of an individual or organization held towards other members of society. Whether the defendant owes the plaintiff a duty depends upon the relationship between the defendant and the plaintiff. (Owen, 54 Vand. L. Rev. 767, (2001)). The duty element attaches only to the actor(s). For instance, in Ross v. Marshall, 426 F.3d 745 (2005), the United States Court of Appeals for the Fifth Circuit found that the original actors had a duty of care but their parents did not. Breach of the duty of care is the next element that must be proven by the plaintiff. In other words, the person bringing suit must show that the defendant did not act as a reasonably prudent person acting under similar circumstances. (Cornell). “(T)he plaintiff seeks to establish that the failure of the defendant to act as a reasonable person caused the plaintiff's injury. (Id.). One of the leading cases on breach of duty is Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928). Justice Cardozo said, “Long Island Railroad’s liability for an inadvertent or unintentional act cannot be greater than it would be if the act had been intentional.” In this case, the railroad company could not have reasonably foreseen events as they unfolded. The proximate cause of the injury resulting from the breach of duty is the last of the basic three elements of negligence. (Hofstra). The previous, common law view held that proximate cause was the only way negligence occurred. Proximate cause was a very direct and literal term; that which was a direct A/B relationship, based on the doctrine of res ipsa loquitor (Latin for "the thing speaks for itself"). The Palsgraf court expanded that to a “Zone of Danger” beyond which an event cannot have been foreseen by the reasonable, prudent person. (1928). In MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), Justice Benjamin Cardozo ended the privity factor required in the Donoghue decision, at odds with the common law. This allowed for products liability cases as a sub-set of the tort of negligence. Works Cited Cornell University School of Law, Legal Information Institute, available at (last visited August 18, 2011). Donoghue v. Sullivan, [1932] UKHL 100, 1932 SC 31, [1932] AC 562, [1932] All ER Rep 1 Owen, David G., The Five Elements of Negligence, Hofstra Law Review, Volume 35, No. 4, Summer 2007. Owen, David G., Duty Rules, 54 VAND. L. REV. 767, 767-79 (2001). MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928). Restatement (Second) of Torts § 552 (1977). Ross v. Marshall, 426 F.3d 745 (2005). Smith v. United States, 507 U.S. 197 (1993). Read More
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