Negligent Tort - Research Paper Example

Elements of a negligent tort To file a successful case of unintentional tort, it is the duty of the plaintiff to prove that the defendant owed a duty of care towards the plaintiff. Duty of care refers to an individual’s obligation towards another individual to minimize and remove all foreseeable and avoidable risks (Miller, 2007, 95). A negligent tort case can be filed against a person if the individual is inattentive, fails to foresee an avoidable risk and, therefore, is unable to eliminate that risk.

For example: if an individual holds a party on his property, it becomes his duty to inform the guests of all the negative and positive effects of attending the party and it is his duty to ensure that all the potential and avoidable risks are eliminated. The second element of unintentional tort is the breach of duty of care by the defendant, whether the defendant has breached his duty of care depends on the factual evidence of the case. In a tort case, the defendant is compared to a reasonable person, if the defendant has not acted as a reasonable person should have, he is considered to be liable.

The law helps the plaintiff in identifying whether the defendant has breached his duty. . If harm has been caused, then it is obligatory for the defendant to compensate for the loss. The fourth element is the proximate and actual cause and effect relationship between the loss faced by plaintiff and the unintentional harm caused by the defendant. Actual cause and effect relationship refers to the fact that the harm was actually caused by the defendant to the plaintiff. For example: a huge number of accidents take place every day, sometimes those not involved in the accident become victims due to bad luck or negligent behavior by the victim, in such cases, the defendant cannot be held responsible in the case of negligent tort.

Proximate cause refers to whether the defendant should be held responsible for negligent behavior according to fairness, practicality, rule and common sense. Remedies According to the law, there are different kinds of remedies when the plaintiff is successful in proving a negligent tort case. Remedies include; compensatory remedy, according to compensatory remedy, the plaintiff is to be compensated for both emotional as well as monetary losses (Walston-Dunham, 2012, p.227). Emotional losses include pain and hurt and monetary losses include loss of wages or property.

Emotional damages fall under the category of General losses and monetary losses fall in the category of compensatory damages. The defendant may even have to pay for the replacement of loss in case of compensatory damage. These remedies are used both in intentional as well as unintentional torts. In severe cases and mostly in cases of intentional tort, the defendant may even face punitive damages; punitive damages may include punishing the individual who has been held accountable for