Tort Law of Negligence - Essay Example

Tort law of negligence Name Institution Date Tort law of negligence In 2007, a man from Washington D.C became notorious for suing a dry cleaner for losing his favorite pair of trousers. This alone would not be regarded as an unusual case, but the man was so stressed by the loss of his treasured item of raiment that he sued for $ 54 million over an alleged violation of the dry cleaner’s posted policy of “satisfaction guaranteed”. Ultimately, he lost. However, in 1980’s, a man did win a verdict for tens of thousands of dollars because a paper cut on his lip interfered with his favorite pastime of whistling. Although these alleged violations of personal rights at the hands of another are the more extreme cases, they are actually the signs of a healthy legal system. Under American principles, anyone who feels they have been legally wronged in a compensable manner by another can bring an action in court where an objective third party can review the case. Yes, there are frivolous suits and sometimes the real injury to society is the stupidity of some individuals who are allowed to roam freely. Yes, there is some basis to the advocated position that there should be an early warning system about such people. The vast majority of claims, however, are well founded and sincere. The openness of our court system to all citizens is the ultimate sign of a free and responsive society. It is up to the rest of us as that objective third party of judges and juries not only to honestly evaluate and not perpetuate claims based on greed or stupidity but also to ensure that those who are responsible for actual injuries are held accountable. In doing so, we must keep in mind that what is of no importance to one person may be devastating to another (Walston-Dunham, B. 2008, p. 215). A tort (French for “wrong”) refers to a civil wrong inflicted on another person or the person’s property. The law of tort is closely related to law of agency because a business entity, or principal, can be held liable for torts committed by its agents in the course of business dealings. Tort law differs from both criminal and contract law. While criminal law is concerned with crimes against the state or society, tort deals with compensation for injured people who are the victims of noncriminal wrongs. Tort cases are often extremely complex and may result in large monetary awards. It is typical to read or hear about cases in which patients are awarded millions of dollars in compensation for inadequate medical care. A tort may be intentional or it may be caused by negligence, assault, slander, libel, and fraud are all examples of international torts. Businesses can become involved in such cases through the actions of both owners and employees. A security guard who uses excessive force to apprehend an alleged shoplifter may have committed a tort. Under agency law, the guard’s employers, such as a shopping mall or retailer, can also be held liable for any damages for any damages or injury caused by the security guard. The other major groups of torts result from negligence. This type of tort is based on carelessness rather than intentional behavior that cause injury to another person. Under agency law, business can also be held liable for the negligence of their employees or agents. A delivery truck driver who kills a pedestrian while delivering goods creates a tort liability for his or her employer if the accident results from negligence. An area of tort law known as product liability has been developed by both statutory and case law to hold business liable for negligence in the design, manufacture, sale, or use of products. Some states have extended the theory of tort law to cover injuries caused by products, regardless of whether the manufacturer is proven a negligent. The legal concept is known as strict product liability. The business response to product liability has been mixed. To avoid lawsuits and fines, some recall defective products voluntarily; others decide to fight recall mandates if they believe the recall is not justified. Auto manufacturers and toy makers typically issue voluntary recalls, as do drug manufacturers (Boone, 2008, p 135). Tort versus crime A crime is a public wrong that require the wrongdoer to pay a debt to society through a fine or by going to prison. For example, the crime of assault results in imprisonment, probation, and/or a fine. The assault, victim could bring suit against the charged assailant for the tort of assault to recover damages, such as medical bills, lost wages, and pain and suffering. Suppose that you stretch your arms in a crowd and you hit a man in the nose and hurt him. You have not committed the tort of battery, but you may have committed the tort of negligence. You were carelessly swinging your arms in a crown of people. Such careless conduct, or actions done without thinking through the consequences, is the tort of negligence. We are still responsible for damages to the nose because when you fail to act cautiously and thoughtfully, we are negligent. We have strict tort liability for our conduct that carries inherent dangers. For example, when contractors use dynamite to raze a building, they have strict liability because the incendiary devices are so risky and consequences so great that we hold them responsible regardless of the precaution they take. Intentional infliction of emotional stress This tort imposes liability for conduct that goes beyond all bounds of decency and results in emotional distress in the harmed individual. To recover, the plaintiff is required to prove outrageous conduct and damages from the emotional distress. Although “pain and suffering” damages have been awarded for sometime in negligence actions, awarding damages for emotional distress alone is a relatively new phenomenon. However, the tort of intentional infliction of emotional distress has been used quite often by debtors who are harassed beyond standards of decency by creditors and collection agencies in their attempt to collect funds (Jennings, 2008 p.186). We all have minimal standards of care we are expected to use in driving, in our work, and in the care of our property. The tort of negligence imposes liability when we fall short of those standards. There are five elements of negligence. Each of us has the duty to act like an ordinary and reasonably prudent person in all circumstances. The standard of the ordinary and reasonably prudent person is not always what everyone else does or what the law provides. For example, suppose you are driving on a curvy highway late at night and it is raining quite heavily. The posted speed limit is 45 mph. However, the ordinary and reasonably prudent person will not drive 45mph because the road and the weather conditions dictate that slower driving is more appropriate. Duties can arise from statutes. Every traffic law carries a criminal penalty (fine and/or imprisonment) for violations, but a violation of that law is also a breach of duty for purposes of proving negligence. When you run a red light, you have not only committed a crime; you have also breached a duty and are liable for injuries and damages resulting from that red light racing. Professionals such as doctors, lawyers, and dentists have the duty of practicing their professions at the level of a reasonable professional. Failure to do so is a breach of duty and a basis for malpractice (negligence by professionals) lawsuits. Landowners owe duties to people who enter their property. For example, the duty to trespassers, such as thieves, is not to intentionally injure them. Placing man traps would be the breach of this duty. While the victim of a tort might be entitled to financial support from the state in the form of social security benefits and statutory compensation schemes, a successful legal claim in the law of tort will often lead to a much more generous financial settlement. Where a successful claimant has received benefits, the value of these will either be deducted from the damages award, or recovered by the state from the defendant. All claimants are subject to rules on the timing of the claim under the limitations Act 1980. Claims must generally be brought within six years of the tort. Claims must generally be brought within six years of the tortuous act being committed, or the consequences of the act be being suffered. However, in personal injury cases the claim must be brought within three years of the damage actually occurring. A longer limitation period will apply if, for example an occupational disease (such as pneumoconiosis) is contracted through exposure to workplace dust over a long period of time and the claimant’s knowledge of this came only at a later stage. If a worker was exposed during his career to such dust in several workplaces, the current House of Lords authority – Barker v Corus (UK) plc, 2007 – suggests that he should sue each business for damages on the basis that any compensation awarded will be apportioned between them by reference to their relative contributions to the risk of harm. If, as a result of the defendant’s negligence, the claimant dies, a claim for damages may be brought either by the claimant’s estate (that is, the representatives of the deceased’s interests) under the law reform (miscellaneous provisions) Act 1934, or, in certain specified circumstances, by the claimant’s dependants under the Fatal Accidents Act 1976. If a defendant commits an act of negligence whilst driving an uninsured vehicle or a driver cannot be traced, a claimant can seek compensation via the Motor Insurers’ Bureau. The case of Philips v Rafiq and another (2007) illustrates how some of these examples can apply in a real situation. Here, a man was killed in a traffic accident caused by the negligence of an uninsured driver. The man’s widow was able to make a claim on the basis of Fatal Accidents Acts 1976, with the motor insurers’ Bureau, in the circumstances, being liable to compensate her. (Mitchell, 2008, p. 316). In our case Alan is in a position of responsibility hence he can be sued for sort of negligence but Mrs. Todd must now show that Alan is failed to act as a reasonable supervisor. She can also sue fresco supermarket because the employer was aware of the need to recruit its staff. Brian can sue the tobacco stall because an employer is under a duty to take reasonable care for the health and safety of his employees. This is a personal, non delegable duty owed to each individual employee. Obviously, as the tort is negligence based the plaintiff must not only show that he is owed a duty and falls within the remit of the duty but that there has been a breach and that the breach caused the injury to the plaintiff, albeit on a balance of probabilities (Holmes, 1997, p. 143). To establish negligence, the plaintiff must first prove the existence of a legal relationship between himself or herself and the defendant. Duty is defined as a legal obligation of care, performance, or observance on one to safeguard the rights of others. Duty might arise from a special relationship such as that between a physician and a patient. The existence of the relationship implies that a physician-patient relationship was in effect at the time an alleged injury occurred. The duty to care can arise from a simple telephone conversation or out of a physician’s voluntary act of assuming the care of a patient. Duty can also be established by statute or contract between the plaintiff and the defendant. Where there is a contractual duty of care and an injury occurs. Patients have a choice of theories to use to determine which type of lawsuit to pursue – breach of contract or tort. In some jurisdictions, the statute of limitations for breach of contract is longer than for negligence actions. In such cases, the existence of a contractual of care may extend the liability of a health care provider for several years (Pozgar, 2007, p.30). References Walston-Dunham, B. 2008, Introduction to Law. Cengage Learning, New York. Boone, Louis E. & Kurtz, David L. 2008, Contemporary Business 2009 Update. Cengage Learning, Mason. Jennings, Marianne M. 2008, Foundations of the Legal Environment of Business. Cengage Learning, Mason. Mitchell, A, 2008, AS Law. Taylor & Francis. New York Holmes, A. 1997, Business Law Q&A By David Kelly. Routledge, London. Pozgar, George D. 2007, Legal aspects of health care administration. Jones & Bartlett Learning, London. Read More