Law of Tort and Categories of Torts - Term Paper Example

Law of Tort Outline Business enterprises faces myriad of challenges in the environment in which they operate. Without business law, most business would find it extremely difficult to conduct its affairs as required. The laws that govern business operations include property law, law of torts, law of contract, criminal law, anti-trust law, competition law, labour laws, employment laws and business organization. The above laws guide the conduct of all business enterprises and ensure that they operate harmoniously even as they compete for markets and limited resources. 1.0 Introduction As people coexist, there are certain issues that emerge especially in relation to individual or organizational conduct. Every person and business organization on earth is expected to act responsibly to prevent harming the environment and other living organisms. However, there people who are unreasonable and expose others to various degrees of dangers and harm, thus disrupting peaceful coexistence. The law of tort has been created to govern the bad conduct of such people. Edwards et al (pg. 4) describes tort as a civil wrongdoing and not breach of contract or criminal wrongdoing. A person who suffers tort receives compensation from the person or organization that caused the injury to him or her. Examples of torts include intentional torts, negligence, nuisance, vicarious liability, statutory torts and defamation. However, a person who is alleged to have caused an injury or damage to the other person can absolves himself or herself through a number of legally recognizable defenses. If defendant is successful, he or she may pay lesser or no compensation to the victim. It is the responsibly of the plaintiff to provide proof in tort cases that defendant wronged him or her. 2.0 Categories of Torts There are various classes of torts, which affect business operations differently depending on the subject matter. They include negligence, statutory torts, nuisance, defamation and intentional tort. 2.1 Negligence According to Hodgson and Lewthwaite (pg.1), negligence can be defined as an act of being careless. There are three main elements of negligence in tort. First, a legal duty must exist, secondly, there must be breach of the legal duty and thirdly, damaged must have been suffered because of breach of legal duty. The plaintiff (claimant) must prove beyond reasonable doubt that the defendant owed him or her legal duty of care. Negligence is recognizable in the court of law only where the relationship between the defendant and claimant give rise to the legal duty of care. For example, a doctor who operates on a patient and leaves surgical equipment in the patient’s body is liable for negligence. 2.2 Statutory Torts Statutory torts are civil wrongdoings that have legislative backing. The statutes impose duties to private and public entities that cause the tort to compensate or remedy the injured as defined by law. To be valid, the statute must impose a specified duty on the defendant. For example, if legislation (statute) imposes a duty to the employer to take care of the employees’ welfare, then the courts always construe the statute as giving rise to a statutory tort. If the employer fail to take care of the employees’ welfare and the employees sustain injuries or suffer losses as a result, the employer (defendant) is guilty of statutory tort and shall compensate the employees as per the requirements of the guiding legislation. 2.3 Intentional Tort Intentional wrongdoing is consciously harming someone to achieve a predetermined objective. The objective may be to inflict physical pain or emotional torture maliciously or with some deep feelings of revenge. Intentional torture includes assault, battery, false imprisonment as well as tress pass to land and to chattels. A police officer who detains a person unlawfully and deliberately is guilty of intentional tort. Therefore, the detained person can claim compensation from the police officer for the injuries, losses or damages he or she sustained when in detention. 2.4 Nuisance According to Statsky (pg.245), nuisance is an activity or conditions that are harmful, bothersome or annoying. A wrongful conduct interferes with the lives of the private and general public. Excessively loud noises and bad odors are examples of nuisance. They prevent a person or public from reasonable use and enjoyment of an asset, or living lives that are free from unreasonable interference. Private nuisance affects individual persons. For example, factory that produces and sends black smoke into the air is a nuisance if the smoke particles fall onto the house of person and cause damage to the property. On the other hand, public nuisance involves large number of people or the public. Examples of public nuisance include keeping sick animals to be sold for food to the public, operating a brothel or obstruction a public road or highway. Remedies available for nuisance are financial compensation or injunction. 2.5 Defamation Defamation is tort meant to degrade reputation of a person. Defamation consists of malicious acts and gestures performed or words uttered or written to give a wrong impression about a given person in a bid to affect the life of a person negatively in marriage, office, trade or service. The driving force behind defamation is to injure or degrade person’s reputation. Defamation is arguably real if published or recorded statements exist with defamatory meaning referring to a complaining person. 2.6 Vicarious Liability Steele (pg. 564) stated that vicarious liability is referred to as a liability accruing to a person who did not caused it. A person is liable for the harm or losses caused by another person. For example, an employer can be liable for the loss that has been caused by his or her employees. On the other hand, one person in partnership can be liable for the losses or injuries caused by the other partners. To be able to have a sustainable claim on vicarious liability, it is important to prove that the cause of the vicarious liability tort is sufficiently connected with employment or partnership. Vicarious liability may sound absurd because it is common sense for the causer to pay for the damages. However, it is on the premise that the employer or other members of partnership gain from the action that caused loss or damage to the other persons. 3.0 Tort Remedies According to Bagley and Dauchy (pg. 364-365), people who suffer losses or injuries due to wrongdoing caused by other persons can be compensated in different forms. Compensation in tort is classified into actual and punitive damages as well as injunction. Actual damages refers to compensatory damages that takes into account the cost of repair or replacement of an item or paying the decreased market value caused by wrongdoing. Compensatory damages include medical expenses, lost wages and profits as well as pain and suffering. On the other hand, punitive damages are expensive and serve to deter the wrongdoer or potential wrongdoer from repeating the misconduct. However, punitive damages are limited to cases of outrageous wrongdoings. If actual and punitive damages are not adequate, the court may issue an injunction prohibiting the wrongdoer from continuing the misconduct. Injunctions are appropriate for torts such as trespasses and nuisance. For defamation, courts may order the person who defamed to withdraw the degrading acts or statements and publish a retraction. 4.0 Defenses Against Torts At times, the tort claims may be outrageous and unfounded. Therefore, the defendants may adapt defenses to absolve themselves from toxic claims. Rudlin and American Bar Association (pg.71) claimed that procedural defenses exist to defend a person fully or partially from claims presented by the plaintiff at trial. Procedural defenses include statutes of limitations and statutes of repose. Both work in favor of the defendant based on expiry or lapse of time following the injury or loss. For example, a product liability action took effect when the alleged defective drug or food was introduced into the body of the plaintiff and not when the effects were discovered eighteen or twenty years later. If a person complains after many years since ingestion of such food or drug, he or she may be restrained and defendant may not be liable. Other defenses include no breach of duty, no consent, contributory negligence and illegality. A person is not liable of tort if there was no breach of duty made by the defendant. The plaintiff must prove the three elements of negligence under which the tort occurred. The defendant is also not liable for actions, which the plaintiff has not consented. In addition, a defendant is not liable for losses or damages that accrued to the plaintiff if he or she warned the plaintiff in advance about the dangers that exist before they occur. In addition to the above defenses, defendant may be liable for part or percentage of the losses or injury he or she cause and not the whole of it. Finally, the defendant is not liable for the injuries or losses that the claimant suffer if the claimant at the time of loss or injury was engaged in an illegal activity. 5.0 Conclusion The law of tort has been used for many years to minimize losses or injuries inflicted by people to other members of the society. The civil law recognizes nuisance, defamation, vicarious liability, negligence, intentional tort and statutory tort as main classification of tort. Torts have helped to protect people from harmful behaviours of other members of the society and have promoted good business practices. Every person who genuinely suffers loss can claim actual, punitive compensation as well as injunction or all. However, there are torts that have no basis and the defendants should seek defenses on the grounds of procedural defenses, no breach of duty, no consent, contributory negligence or illegality. Sources Bagley, Constance and Craig Dauchy. The entrepreneur's guide to business law. 3rd ed. New York: Cengage Learning, 2008, pg. 364-365. Edwards, Linda, J.,Stanley Edwards, and Patricia Wells. Tort Law for Legal Assistants. 4th ed. New York: Cengage Learning, 2008, pg. 4. Hodgson, John and John Lewthwaite. Tort Law. Textbook 2nd ed. Oxford: Oxford University Press, 2007, pg.1. Rudlin, Alan and American Bar Association. Mass Torts Litigation Committee Toxic tort litigation. USA: American Bar Association, 2007, pg.71. Statsky, William. Essentials of torts. 2nd ed. New York: Cengage Learning, 2001, pg.245. Steele, Jenny. Tort Law: Text, Cases, & Materials. Oxford: Oxford University Press, 2007, pg. 564. Read More