Tortious Loss, Civil and Criminal Law - Essay Example

LAW OF TORT In the situation where somebody injures another party or interferes with the person’s property intentionally, then an intentional tort has been committed. Negligence tort deals with a violation of the duty of due care. Intentional torts entail circumstances in which the defendant is aware to a considerable certainty that his act will cause the plaintiff damage. There are four stated elements of tort law which are; duty, breach of that duty, causation and then injury. Strict liability, Negligence, and intentional torts are the main types of torts. A tort is a civil wrong committed as opposed to a criminal wrong.in analyzing an intentional tort; the court separates the act from the results of the act. To be liable to a person bearing the harm the defendant must have in some way intended to act but in other cases he can be held liable for injury caused to a person even with lack of intent to harm. Intentional torts differ distinctively from negligence because they need the tortfeasor to act with the deliberate intention to instigate injury. An intentional tort must include injury caused1. In the case of the electrician and Mr. Stuart, The electrician can sue for intentional tort. Mr. Stuart’s dilapidated warehouse has old live electric wires hanging from the walls in which the electrician brushed off and hence resulted in getting an electric shock. In this case there is general dereliction of duty of Mr. Stuart where in this case Stuart’s negligence caused harmed to the electrician and hence he has to be held responsible. His breach of duty entails the failure of him performing duties in regard with the proper upkeep of the building in a satisfactory manner. The plaintiff will argue that the defendent owes him a duty of care to ensure that he being his worker is not exposed to unnecessary risk of harm and to have that in particular regard that anyone entering the warehouse including the electrician would possibly get hurt2. He genuinely hopes that no one will get hurt but he is aware that it is virtually inevitable that somebody can actually suffer an electric shock at the same time it is reasonably estimative that the loose wires may create a risk of injury to the plaintiff. Hence the element is satisfied, as Mr. Stuart had knowledge to a significant certainty that injury would be caused as a result. It is not necessary for an injured plaintiff to reveal that the defendant intended to instigate injury so as to show that the defendant is accountable for the harm that has occurred. It is enough that the defendant was well aware of that particular outcome3. In addition the electrician can sue for the tort of intentional infliction of emotional distress. This is committed when one is involved in an activity that causes severe distress and mental anguish in the plaintiff. The elements that entail the description of the activity are determined by deciding whether a reasonable person in the same situation would feel the same degree of distress. In this case, the electrician can argue that he has been distressed upon the realization of the serious illness in his head. The distress has been shifted to his family. It must be argued that the warehouse owner, Mr. Stuart recklessly disregarded the great likelihood that emotional distress may occur as a result of his wrong doing. In this case the electrician must reveal the physical indicators of distress or other non-psychological damages such as loss of wages. If the demonstration is successful then the defendant is completely liable for instigating mental distress. Though evidence of direct loss is not an important part of the claim, the electrician still has to establish that he was within the scope of the defendant’s duty of care. The defendant, MR Stuart, is liable for negligence for causing the physical injuries inflicted on the plaintiff first because it is a natural and proper concern of the defendant towards his workmen that he should have previously ensured that the building was safe before allowing anyone to work there hence the defendant should have envisioned a harmful consequence. Accordingly, the defendant, the warehouse owner was in a breach of duty towards the electrician. No defense to the claim arising out of the head physical injury would be afforded either a) by the sure principle of Novus intervenience where it did not apply as in the present case the harm was the very example of what was likely to happen as a result of negligence of the landowner. Or b) that the electrician, his normal work or even his doctors acted recklessly to cause or contribute to his own death. Intervening causes may however confuse the proof presented. For instance the defendant may argue that there was a sign stating the buildings mishaps like the falling roofs. The defendant may accept that he owed the electrician a duty of care but he can argue that he was contributively negligent for not seeing the post and could have therefore be held liable for showing complete disregard of the electrician’s safety. The verdict may in this case be placed upon the defendant and the plaintiff on a case of contributive intelligence that is the defendant for not laying out ample set requirements in the building and to the plaintiff for “ignoring” the sign and hence liable for the damages inflicted on him. But upon this reiteration the plaintiff may argue that the place was dark and the sign board was also placed in a position where it could not be easily spotted by anyone coming in the legal burden of proving these aspects rests upon the plaintiff. The elements for determining negligence liability are; the defendant owed the plaintiff a duty of care, the presence of breach of that duty, if the duty was done the plaintiff would have not been injured hence he suffered damage as a result of that breach and that the damage had proximate cause4. In any case the defendant should not have only warned of the imminent danger but should also take active steps to fence it and take more judicious precautions to prevent the probability of the injuries occurring. Causation of harm will be serving the purpose as long as the defendant is a substantial factor in inflicting injury. Mr. Stuart can also be held liable to the electrician on the grounds of negligence based torts in the situation that the electrician tripped on the floorboards that made a mess of the warehouse keeping the warehouse very unsafe5. On these grounds, the question would be; if an actor means to impose intentional tort upon another party and in the same vein accidentally hams a second party, then could the actor be held responsible for the second party for injury? The holding is affirmative and hence if an actor means to impose intentional tort upon another party and unintentionally the harm is born by another party then the actor is liable for the second party for injuries suffered on the basis of the doctrine of transferred intent. The fact that the injury was borne by another party other than the one it was wished for does not dismiss the defendant from partaking the liability6. Mr. Stuart will therefore not be relieved of the responsibility just because he intended to wish away the homeless. The electrician here tripped over the floor boards damaged his expensive briefcase and also sprained his ankle. Mr. Stuart can be borne liable to the costs of the electrician’s medical costs that resulted from the electrician springing his ankle. In addition the electrician also injured his head when the floor board landed on his head causing a blood clot later. Mr. Stuart can be held liable for the medical costs of this too. Punitive damages allowed are for time lost, discomfort and resulting bad health, loss of business and expenses such as attorney’s fees. Negligence is outlined as not exercising the same degree of care as that a rational person would express in similar circumstances. In a negligence tort action, the main issue the plaintiff needs to handle is to prove to the court that the defendant had a duty to the electrician and violated it by his negligent action or failure to exercise “due care” The electrician can sue. The issue raised will be can a party prevail on a negligence claim if the evidence presented indicates that the party failed to take reasonable precautions to prevent himself against a risk that he was knowledgeable about? NO. A direct verdict cannot be entered against the party even if he suffered injury because he failed to take reasonable precautions to guard against a known danger. The court can hold the electrician contributory negligent reasonably for not stopping and looking for the signs. Under these facts it will be hard for any jury to rule in favor of the electrician7. Upon the action of negligence should the question of due care be a matter for the finder of fact to decide when a resolution should be reached by clear codes of conduct? Usually, the question of due care is normally left to the finder of fact however; when the standard of conduct is very clear then in this situation it is laid down by the court. The court will decide whether the acts committed by Mr. Stuart are unlawful verdict on the above accusations and if there is need for the plaintiff; the electrician to be compensated. In this situation the ruling in previous cases will largely influence the waiting verdict. The Homeless guy A defendant’s intention to harm does not have to be aimed at the injured person so as to hold to hold him liable for the plaintiff. The homeless guy tripped over a loose floorboard and tore his coat when the lights short circuited. Mr. Stuart did not like homeless people hovering around in his property but yet there is no sign of ‘no trespassing” due to the dilapidated nature of the property, the homeless person could have considered the place abandoned since it has long been uninhabited and no activity was happening. The homeless guy knows that he should not break and enter the warehouse that he owns not; despite this fact there is an intentional tort. The homeless man was injured as result of the gross negligence of the warehouse owner to maintain the place in good condition. The homeless guy can also sue for contributive negligence. He would be against Mr. Stuart whose actions of negligence of the building prompted the short-circuiting the lights and consequently made him trip, tear his clothes and broke his leg. The plaintiff will have comparative intelligence attributed to him for not being in the wrong place that is trespass since trespassers are responsible for the consequences of unlawful entry8. A trespasser assumes the e risks that may accrue when entering someone’s land. But at the same time the property owner here Mr. Stuart was aware of the frequent break -ins by homeless people at his warehouse and should have therefore acted affirmatively to keep them away and exercise due care to prevent any imminent injury. Thus in evaluating a collision between the two parties, the court may find that they were both negligent, thereafter the court can estimate the damages and then In this case both will be liable at differing percentages. However since the plaintiff was involved in wrongdoing at the time the injury resulted, the defendant’s liability may be reduced or completely put off. This is purported by the ideology that ‘no right of action arises from despicable cause9.’ In regards to the intentional tort, is the element of intent contented if the defendant knows with a substantial likelihood that his act may result in harmful contact. Despite the sheer lack of intent to injure would not absolve the defendant of the liability if any case he had such knowledge Intentional torts stipulate that the plaintiff is allowed to seek out for punitive damages to punish the defendant and not to compensate for the injuries caused. Tort law is able to define what a legal injury is and hence determine if the defendant is liable for any harmful effect caused to the plaintiff. Therefore it is not ample to reveal that one has suffered in a way so as to win a tort case, one must have legally recognized damages that were directly or indirectly related to the negligence and be able to reveal the degree of the damage. For instance in the case above the homeless guy torn shirt is a probable damage that wouldn’t be covered. In the same light, the electrician’s briefcase may also not be recognized as a legal damage. Legal injuries have a wider scope from physical injuries and could entail emotional, economic or defamation injuries this is also coupled with violations of privacy, constitutional rights to property. In negligent tort action which is more dominant in the cases above, the tortfeasor should be linked to the injuries suffered by the plaintiff. Tort law main aim is to provide relief for the harm caused and also to deter others from committing the same crimes10. In addition the electrician must be able to prove that the blood clot in his head was caused by the accident in the warehouse and not a natural progression of some previous illness or injury this is refer to as proximate cause where the plaintiff must show the harm for the tort that he is suing for. The same applies to the homeless guy who should show a direct link of the negligence and his injury. A downsizing factor would be say if either was drunk thus contributing to his instability and injury result.in both cases it is necessary to indicate the high level of possibility that if the roof tiles fell or if somebody tripped on the floorboards or also like the electrician’s case if someone accidentally brushed on the hanging live electric wires, a harmful occurrence was highly probable. Serious physical injuries were a generally foreseeable result and failure to prevent the roof tiles caving in and that would be sufficient. Tortious loss is mainly remedied by compensation in damages or money. Such as the cases above, in both medical costs is the most probable expense that was incurred. These are referred to as punitive damages. The elements of the different torts that are assault, slander, trespass or battery among others vary but they all collectively require that the defendant acted with intentionally to cause harm.in order to receive compensation for the damages the plaintiffs in both cases they need to prove all the elements in both their cases. The amount of a plaintiffs liability cover is highly dependent on the proof presented and admissible in court and on the extent of the injuries caused to the plaintiffs. Table of Authorities Conford, Titus. “Toward A Public law Of Tort” Ash gate Online Library. (England, 2008) 12 Cooke, Peter.” Law of Tort” Longman Books. (Harlow. September 2007) 11 Deakin, Sally, Johnston, Charles, & Markesinis Bolliger. “Tort Law” Clarendon Press. (Oxford, June 2008) 12 Dias, Ruth& Markesinis, Bolliger.”Tort Law” Oxford Press. (Clarendon, 1984) 12 Edwards, Lamech&Edwards, Wells”Tort LawClifton Print. (New York, June 2012) 12 Elliot, Cameron &Quinn, Falloha.”Tort Law” Longman Books. (Harlow May 2001) 12 Finche, Emerald. “Tort Law” Pearson Print. (England, July 2007) 12 Friedman, Luke. ‘A History of American Law”New York Press. (New York 1987) 12 Geist Feld, Morris. Tort Law. Law and Business Journals. (New York, June 2008) 12 Keeton, Paul & Prosser, William. “Prosser and Keeton on the Law of Torts”West Pub Co. (St. Paul Minn, February 1984) 12 Kuperberg, Morris & Beits Cuhler.”Law Economics And Philosophy: A Critical Introduction, With Applications to the Law of Torts” Economics Journal. (New Jersey, July 1987) 12 Larouche, Palin, Lever, John & Van Gerven. “Tort Law” Hart Publications, (Cambridge, May 2000) 12 McBride, Junior & Baghaw, Remy “Tort Law” Pearson Print. (England, May 2005) 13 Owen, George. Philosophical Foundations of Tort Law.Clarendon Press. (Oxford, May 1995) 11 Porat, Alex & Stein, Andrew.” Tort Liability under Certainty” Oxford University Press. (England, July 2001) 13 Steiner, Haley.”Moral Arguments And Social Vision In The Courts: A Study of Tort Accident Law” Wisconsin Press. (Madison, November 1999) 12 Williams, Gallagher & Hepple, Ashley. “Foundations of the Elements of Tort”. Butterworths Books. (London, June 1986). 12 Winfred, Paulla.A Text Book ofthe Law of Tort. (London, September1997). 11  References Conford, Titus. “Toward A Public law Of Tort” Ash gate Online Library. (England, 2008) Cooke, Peter.” Law of Tort” Longman Books. (Harlow. September 2007) Dias, Ruth& Markesinis, Bolliger.”Tort Law” Oxford Press. (Clarendon, 1984) Deakin, Sally, Johnston, Charles, & Markesinis Bolliger. “Tort Law” Clarendon Press. (Oxford, June 2008) Elliot, Cameron & Quinn, Falloha.”Tort Law” Longman Books. (Harlow May 2001) Edwards, Lamech& Edwards, Wells”Tort Law Clifton Print. (New York, June 2012) Friedman, Luke. ‘A History of American Law” New York Press. (New York 1987) Geist Feld, Morris. Tort Law. Law and Business Journals. (New York, June 2008) Larouche, Palin, Lever, John & Van Gerven. “Tort Law” Hart Publications, (Cambridge, May 2000) Finche, Emerald. “Tort Law” Pearson Print. (England, July 2007) Keeton, Paul & Prosser, William. “Prosser and Keeton on the Law of Torts”West Pub Co. (St. Paul Minn, February 1984) Kuperberg, Morris & Beits Cuhler.”Law Economics And Philosophy: A Critical Introduction, With Applications to the Law of Torts” Economics Journal. (New Jersey, July 1987) McBride, Junior & Baghaw, Remy “Tort Law” Pearson Print. (England, May 2005) Steiner, Haley.”Moral Arguments And Social Vision In The Courts: A Study of Tort Accident Law” Wisconsin Press. (Madison, November 1999) Porat, Alex & Stein, Andrew.” Tort Liability under Certainty” Oxford University Press. (England, July 2001) Owen, George. Philosophical Foundations of Tort Law. Clarendon Press. (Oxford, May 1995) Williams, Gallagher & Hepple, Ashley. “Foundations of the Elements of Tort”. Butterworths Books. (London, June 1986). Winfred, Paulla.A Text Book of the Law of Tort. (London, September1997). Read More