Negligence Gives Rise to a Cause of Action - Essay Example

CIVIL LIABILITY Introduction Negligence is the failure of a person to observe a reasonable care in the performance of an act that oftentimes resultto injury to persons or loss to property. In other jurisdictions, they call it as tort. Tort is a private or civil wrong or injury, other than breach of contract, for which a court of law may provide a remedy through a lawsuit for damages or compensation. When a person violates his/her duty to others created under general (or statutory law), a tort has been committed. Negligence gives rise to a cause of action.1 The cause of action is the heart of the complaint, which is the pleading that initiates a lawsuit. Without an adequately stated cause of action the plaintiff's case can be dismissed at the outset. It is not sufficient merely to state that certain events occurred that entitle the plaintiff to relief. All the elements of each cause of action must be detailed in the complaint. The claims must be supported by the facts, the law, and a conclusion that flows from the application of the law to those facts.2 To prove a cause of action for negligence, you need to prove the four elements of the tort. The four elements of a tort are the following: a) the existence of a legal duty owed by a person to others which is usually provided by common or statutory laws; b) the breach of the duty by one person (or the negligence itself); c) the breach of the duty being the proximate cause of damages suffered by a person; and, d) damages incurred by a person. In a car accident for example, you need to prove the following to hold the driver who caused the crash liable for negligence; a duty to operate the vehicle properly, that they breached that duty by driving improperly, that the breach of the duty by the offending driver caused the accident; and, that the person was damaged by the accident, in the form of injuries.3 In general, a party who has caused an injury or loss to another as a consequence of his negligence is responsible for all the consequences.4 The usual penalty for negligence is the payment of damages. Damages, in a legal sense, are the sum of money the law imposes for a breach of some duty or violation of some right.5 It place a monetary value on harm done following the principle of restitution in interim (Lain term for "restoration to the original condition. Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty is irrelevant. Once the breach of duty is established, the only requirement is to compensate the victim. One main test that is posed when deliberating whether a defendant is entitled for damages is the "reasonable person" test. This answers the question: would a reasonable person (to be determined by a judge or a jury) be damaged by the breach of duty This test is important in deciding whether or not a defendant is entitled to compensation for negligence or tort. Generally, there are two types of damages: compensatory and punitive. The term "damages" typically includes categories, but the term "actual damages" is synonymous with compensatory damages, and excludes punitive damages. Compensatory damages, like the name suggests, are intended to compensate the injured party for his loss or injury. This may include past and future economic losses, including medical expenses and loss of wages, and general damages such as such as pain, suffering, and mental anguish.6 Each of the four elements of a tort typically must be present to be compensated. Slip and Fall Accident A typical source of cause of action because of negligence in the United Kingdom is the slip and fall accident. This happens when a person slips and falls over a private or public property because of the wet, rough, or oily floor or due to the dangerous condition of the place that resulted to injury. It is normal to slip and fall, however, if the accident was caused by negligence of the property owner (or occupier), then he can be held liable for the injuries sustained by a person, whether the victim is an expected visitor in the place or not. Under the Occupiers Liability Act 1984 of the United Kingdom, the owner or occupier of land (and property) owes a duty to ensure the reasonable safety of visitors. This means that he should see to it that his property is in such a condition that when a visitor comes, there will be no chance that the visitor will be endangered or injured. If as a visitor you slip and fall over an occupier' s property, you would be able to claim under the Occupiers Liability Act 1984 because you had implied consent to be on the land or premise. The occupier of premise owes a duty not only to a visitor but also to someone who is not a visitor (like a trespasser). Liability arises if the occupier of a property is aware of the danger or believes that it exists, he knows or believes that the trespasser is either in the vicinity or may come into the vicinity of the danger, and the risk is one where the occupier could reasonably offer protection.7 To be legally responsible for the injuries suffered from slipping and falling of a victim on the occupiers/s property, one of the following must be true: a) the owner of the premises or an employer must have caused the spill, worn, or torn spot, or other slippery or dangerous surface or item to be underfoot; b) the owner of the premises or an employee must have known of the dangerous surface but done nothing about it; and, c) the owner of the premises or an employee should have known of the dangerous surface because a "reasonable" person taking care of the property would have discovered and removed or repair it. Liability in this case is often decided by common sense. Knowing whether the owner makes regular and thorough efforts to keep the property safe and clean may determine what is reasonable.8 In the slip and fall accident case at hand, the Thompsons can be held liable for the injuries sustained by Victoria and she can demand payment for the injury she suffered in the accident. Mr. Thompson is liable applying the four elements of torts in slip and fall accidents: The Occupiers Liability Act 1984 provides that an occupier of premises owes a duty to another (not being his visitor) in respect of any such risk of their suffering injury on the premise by reason of any danger due to the state of the premises or to things done or omitted to be done on them. This is true if the occupier or premise is aware of the danger or has reasonable ground to believe that a danger exists in his premise, he knows or has reasonable grounds to believe that the other is in vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not), and, the risk is one against which, in all circumstances of the case, he may reasonably be expected to offer the other some protection. Mr. Thompson breached his duty as provided under the Occupiers Liability Act 1984 when he spilled a large quantity of oil in the floor and he failed to clean it. Mr. Thompson has the reasonable duty to clean the spilled oil not only because he was the one who spilled it but because it exposes a danger to others who would come expectedly or unexpectedly in the area where the oil was spilled. Victoria slipped and fell over the spilled oil which was caused by Mr. Thompson. Without the spilled oil on the floor, no injury should have sustained by Victoria since the slip and fall incident will be far from happening; and as a result of the slip and fall over the spilled oil, Victoria cuts her arm very badly and her dress was filled with oil which are compensable damages on her part. Negligent Driving Another typical source of cause of action because of negligence is an accident brought about by negligent driving. There are common law and statutory laws that require drivers in the United Kingdom to use reasonable care to avoid harming anyone encountered on the road. One of these statutory laws is the Road Traffic Act 1988. Section 1 of this Act provides that "a person who causes the death of another person by driving a motor vehicle on a road recklessly is guilty of an offence". Similarly, Sections 2 and 3 of the same Act provides: ''A person who drives a motor vehicle on a road recklessly, and if a person drives a motor vehicle on a road without due care and attention, or without reasonable consideration for other persons using the road, is guilty of an offense." What is reasonable in driving depends on the law of the country where the accident happened. In general however, conduct of the driver prior to the accident is a determining factor if in knowing if he is negligent or not. "If a driver fails to meet the following requirements, he or she may be found to have violated the driver duty of reasonable care:9 Driving at a reasonable speed. Drivers have the duty to drive at a reasonable, prudent speed. A person who drives at a speed that is unreasonable in light of the existing traffic, road, visibility, and weather conditions may be negligent. Even driving at the speed limit can be considered negligent, if for example, visibility is low, the weather is bad, or the circumstances warrant particular caution (driving by a school where you can expect children crossing, for example). Vigilance and keeping a proper lookout. Drivers have a duty to be alert and to maintain a careful lookout for other vehicles, pedestrians, and road hazards. Drivers are expected to see the things that an ordinary, prudent person would see. A failure to keep a proper lookout - by, for example, failing to take care when driving by a road construction site or a school crossing - can constitute negligence. Maintaining control of the car. Drivers are expected to keep their car under control by, for example, being able to stop quickly. Negligence may be inferred if a car losses control (such as overturning or leaving the road) for no apparent reason. Maintaining and using the car's equipment. Drivers are expected to maintain their vehicles in safe working order. For example, lights and breaks should be working properly. In the car accident, the George may be held liable for the leg injury sustained by Victoria and she can demand payment for the injury she suffered in the accident. George is liable in this case applying the four elements of torts in car accidents: The Road Traffic Act 1988 provides a legal duty for drivers in the United Kingdom to drive with due care and attention, and with reasonable consideration for other persons using the road. Any person violating this legal duty is liable for an offense. George breached his legal duty as provided by the Act when he drove his car negligently along the street. The negligent driving of George resulted to the car accident to which Victoria suffered an injury. As a result of the car accident, Victoria suffered a leg injury. When emotional distress is compensable It is worthy to note that compensatory damages are broken down further, and that's where you get the difference between emotional distresses, damages and out of pocket damages. Even though they're both compensatory, as in designed to compensate you, they are based on different kinds of injury. Out of pocket damages are also called economic damages. Economic damages are specific monetary losses that can be itemized. For example, in your case, the money you lost by losing time at work counts as economic damages. It's a simple matter of adding up hours and multiplying by wages, and it's a calculation that anyone can do if they have the numbers. For another example -- in a car accident case, the amount of money to fix the car, and the amount of money to pay medical bills, are all economic damages.10 Emotional stress, which a sort of general damage in car accidents, has been recognized as compensable in the case of negligence. The general rule was that emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury. "A plaintiff who came to court having suffered only emotional distress and no pecuniary loss would not win a suit for negligence."11 "Emotional distress is still considered compensatory damages, but they are not economic damages. They are noneconomic damages. Generally they are not capable of being itemized and totaled up, and they represent things like pain, suffering, horror, sleeplessness, anxiety, worry, anguish, and so on. The amount of compensation is case to case basis. There is no formula. There is no "range." Sometimes you'll hear that in car accident cases, the "rule of thumb" is that the "pain and suffering" damages are twice or three times the out-of-pocket; but from long experience I can tell you that's more often false than true".12 In this case, Harriet suffered an emotional distress when he tried to avoid being hit on the crash by jumping back into the pavement. Her act required a physical action, thus physical injury is also possible. Therefore, in that instance her emotional stress is compensable. It will be different if Harriet had just been standing on the pavement when she saw the crash because her emotional stress is not parasitic. References "Car Accidents Caused by Negligence". Nolo.com. Retrieved on February 28, 2009 from "General Negligence". Mesriani Law Group (Online). Retrieved on February 28, 2009 from "Negligence". Absolute Astronomy.com. Retrieved on March 2, 2008 from "Occupiers Liability Act Claims". Not My Fault.com. Retrieved on February 28, 2009 from "Occupiers Liability Act 1984". OPSI.com. Retrieved on February 28, 2009 from "Road Traffic Act 1988". OPSI.com. Retrieved on February 28, 2009 from "Slip and Fall Accidents: Proving Fault". Nolo.com. Retrieved on February 28, 2009 from "The 'Lectric Law Library's Lexicon on Negligence". The 'Lectric Law Library (Online). Retrieved on February 28, 2009 from http://answers.google.com/answers/threadview/id/728395.html Question Subject: Legal Lawsuit Police Emotional Distress Compensatory Punitive Damages Category: Relationships and Society > Law Asked by: svitlik-ga List Price: $50.00 Posted: 13 May 2006 07:12 PDT Expires: 12 Jun 2006 07:12 PDT Question ID: 728395 I need to understand the difference between lawsuit damages for emotional distress and compensatory damages. Preferably I would like a citation such as a legal book or legal case. The lawsuit may be in Connecticut and may be Federal so this should apply too. This has to do with false arrest and my lawyer told me that we might be able to get damages for emotional distress. Since I was unemployed and I'm not rich or well educated, he didn't feel the base damages, like losing days from work would bring much damages, but felt that because I was imprisoned for the weekend and then let go, I could do OK with emotional distress the other types of damages. I wasn't arrested (never in trouble with the law at all). There was no warrant or prob. cause. I was just captured and then let go. It seems I could prove it pretty well. I just don't want to go through a whole lawsuit if it's going to be hard to get anything down the road. It's not just about money - I want to clear this all up to and get to the bottom of things. But, I don't really understand the emotional ditress and compenssatory type of damages so I need to learn what this is so I know how to go forward. I'd imagine too there could be a punitive award too. Can someone explain to me what are emotional distress damages I'm not stupid - I'll never be the same again from this awful experience, and I go into a panic every time I see a cop on my street and so on. In fact, every time I see a police car and think its for me again. Do I just get up there any cry to a jury and hope they believe me, or is there more to it than that It was a terrible experience for me. is there any guideline to go with Same for compensatory damage - what would I tell the jury - or how do they know whawt to award I'd appreciate some reference to a case if possible. I'm not too interested in the law aspect related to how to file the suit - I understand the amedments to the constitution and everything, but I'm puzzled about this emotional and comp aspect. Answer Subject: Re: Legal Lawsuit Police Emotional Distress Compensatory Punitive Damages Answered By: hagan-ga on 17 May 2006 11:43 PDT Hello, svitlik. First let me say that I'm sorry for your troubles, and I hope this answer will help ease your confusion. Most of this is going to be from my own experience as a lawyer handling personal injury and civil rights-type lawsuits, but I will supply cases and references at the end. Also, please note that NONE of this is legal advice. It's just a brief discussion of what the law says, as a general summation of what's out there. What you do with this information is up to you, and it's what you need a lawyer for. You asked about the difference between "compensatory" and "emotional distress" damages. And the short answer is, that "emotional distress" damages ARE a form of "compensatory" damages. They are intended to "compensate" you for an actual injury. But I know that's not helpful, so let me elaborate. Damages in a civil lawsuit come in two main varieties -- "compensatory" damages, intended to make up for a loss that you suffered, and "punitive" damages, intended to punish the defendant for something he did wrong. Ordinarily, you can't get punitive damages unless you have suffered a loss, so you can't get punitive damages unless you should also be receiving compensatory damages -- but the way the amount is calculated is very different. Compensatory damages are calculated by reference to "how badly were you hurt." Punitive damages are calculated by reference to BOTH "how badly were you hurt," AND "how much money does the defendant have, so it's large enough to punish." Note that the amount of compensatory damages has NOTHING to do with how much money the defendant has. If Bill Gates accidentally breaks your arm, he's on the hook for EXACTLY as much compensatory damages as your next-door neighbor would be for doing the same thing. Note also that we don't punish people -- we don't impose punitive damages -- for mere accidents. BUT. If Bill Gates does something malicious or intentional, so that he should be "punished," the amount of PUNITIVE damages he would have to pay would be a LOT more than your neighbor, because it takes a LOT more money to "punish" Bill Gates. You would still be entitled to compensatory damages -- those aren't affected -- but your claim for punitive damages would be greater. Some jurisdictions, incidentally, don't allow the plaintiff to keep all of the punitive damages awarded, because they aren't intended to "compensate" the plaintiff, just to punish the wrongdoer. Okay so far Now let's talk strictly about "compensatory" damages. As a category, "compensatory" damages are broken down further, and that's where you get the difference between "emotional distress" damages and "out of pocket" damages. Even though they're both "compensatory," as in designed to compensate you, they are based on different kinds of injury. "Out of pocket" damages are also called "economic" damages. Economic damages are specific monetary losses that can be itemized. For example, in your case, the money you lost by losing time at work counts as economic damages. It's a simple matter of adding up hours and multiplying by wages, and it's a calculation that anyone can do if they have the numbers. For another example -- in a car accident case, the amount of money to fix the car, and the amount of money to pay medical bills, are all economic damages. But what about "pain and suffering" What about "emotional distress" Those are still considered "compensatory" damages, but they are not "economic" damages. They are NONECONOMIC damages. Generally they are NOT capable of being itemized and totaled up, and they represent things like pain, suffering, horror, sleeplessness, anxiety, worry, anguish, and so on. So how are noneconomic damages calculated Case by case. There is no formula. There is no "range." Sometimes you'll hear that in car accident cases, the "rule of thumb" is that the "pain and suffering" damages are twice or three times the out-of-pocket; but from long experience I can tell you that's more often false than true. The following are a few "false arrest" jury verdicts I found on the web: $3K actual, $3K punitive South Carolina http://www.judicial.state.sc.us/opinions/displayOpinionPF.cfmcaseNo=3820 $117 for emotional pain and mental anguish in S. Florida http://www.ca11.uscourts.gov/opinions/ops/200416113.pdf $0 damages http://touchngo.com/sp/html/sp-4262.htm $100K in Texas http://www.swlearning.com/blaw/cases/reasonable_detention.html $55K in New Mexico http://www.supremecourt.nm.org/pastopinion/VIEW/04ca-114.html This guy claims to have won $1.2M in Connecticut in a false arrest case http://www.wpalmierilaw.com/Attorneys.shtml jury awarded $1.1M, which the judge reduced to $400K, for emotional distress damages based on sleeplessness, loss of appetite, anxiety bouts, cessation of social, volunteer, and church activities, ideations of suicide, and concerns about his immigration status http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA0LTY2MzYtY3Zfb3BuLnBkZg==/04-6636-cv_opn.pdf#xml=http://10.213.23.111:8080/isysquery/irl39eb/1/hilite As you said, you might be in Federal court. Even if you are, however, the Court will apply some Connecticut law. Here is the Connecticut jury instruction on damages: http://www.jud.ct.gov/civiljury/2-40a.htm I hope this has been helpful. It's a huge topic, so if there's anything more you'd like, please don't hesitate to ask for clarification before rating the answer. Thanks! Read More