Analysis of Tort Law Cases - Essay Example

Law/Tort Law 0 Introduction In the common law, a tort is a civil wrong, other than a breach of contract, for which the law provides a remedy. (Tort, en.wikipedia.org)1 The equivalent body of law in civil law legal systems is delict. Delict is an act by which a person, by fraud or malignity, either voluntarily or accidentally without evil intention causes some damage or tort to another. In its most enlarged sense, it includes all kinds of crimes and misdemeanors; including injury caused by the other. They are punishable by imposing a small fine or short imprisonment, depending on the intensity of the case (The 'Lectric Law Library's Lexicon on Delict, www.lectlaw.com)2. 2.0 The Case In the context of the above law, there are quite a few options open to Melissa and Andrew. Colin, an acquaintance by chance, took Andrew water skiing on a lake about 5 miles from their hotel. While skiing, Andrew fell into the lake and went missing. Colin, following the events, jumps into the murky water hoping to save Andrew. Unable to trace Andrew, Colin rushes back to land in the hope of finding help to trace Andrew. Melissa, who is seven months pregnant, on seeing Colin alone, faints. This affects her badly and she suffers a miscarriage. Andrew in the meantime is rescued by a fisherman and carried to the shore. He too suffers from fright and exposure to the freezing cold water. Colin, on his part, did everything possible to rescue Andrew. Whether intentional or accidental, it was his responsibility to ensure the safety of the 12 year old boy. Without taking adequate precautions, Colin had left the boy to face the consequence of his negligence. Melissa, trusting Colin, had let Andrew go with him for skiing. It was his duty to safeguard the small boy from any eventuality. This was a grave mistake on Colin's part to leave the boy to face any unsuspecting danger. Without taking proper precautions, Colin had taken an unsuspecting boy into the lake. Had it not been for the passing fisherman, Andrew could well have lost his life. Unable to trace Andrew, Colin rushed to land to bring help. Colin, knowing very well that Andrew had just fallen into the lake should have spent more time searching for the boy in the hope that his effort would not be wasted. He should have risked his life for the sake of the boy. Those precious moments could perhaps been enough for Colin to save, perhaps, a drowning Andrew. This was a dereliction of duty on Colin's part. Andrew on his part would have expected Colin to come to his rescue and not leave him to get help. Those precious moments could have mitigated his pain and anguish. Andrew was left to fend for himself for no reason of his. The effect that a lone Colin had on Melissa was catastrophic. To Melissa's luck, she suffered only a miscarriage, which in itself was a great personal loss. Had things been different, there could have been a serious danger to her life as well. The trail of events leading to Melissa miscarrying pointed strongly to Colin's biased and unethical attitude. Melissa and Andrew have every right to claim that they were victims of Colin's callousness. 3.0 The Tort Law There are three basic elements in a tort: wrong, harm and an appropriate relationship between the injurer's wrong and the harm to the victim. To harm someone is to set back a legitimate interest. The central idea in tort law is that liability is based not so much on acting badly or wrongfully, but on committing a wrong. The case relating to Melissa and Andrew perhaps goes way beyond the law of Tort. Case relating to Andrew: In this case, Colin had done a wrong to Andrew by ignoring the fact that Andrew was probably fighting for his life and did not make a serious attemptto stay in the water to help Andrew. Without even knowing whether Andrew new to swim, Colin made the fatalerror in letting the boy ski without enough protectionor safety. This is a serious breach of one's security concern. Colin on his part should have made a more serious attempt to trace the struggling boy by staying in water to locate and rescue Andrew rather than run in search of help. These misgivings therefore pointed to a liability based on acting badly or wrongfully. Andrew thus has every reason to charge Colin with attempted man-slaughterd. Case relating to Melissa: Colin without making further attempts to locate the boy had gone ashore seeking help.Mellisa, on seeing Colin alone,was shocked and this had severe repurcussions on her pregnancy. She suffered a miscarriage that affected her both mentally and physically.The callousnessshown by Colin could have had far greater impact on Melissa. She was lucky enough to get away with a miscarriage which in itself left her a mental wreak, but the fact that she survived such a grave situation that could have taken her life as well is irrepairable. A mentally and physically abused Melissa has every right to charge Colin with inattentiveness and purposeful wrong-doing.The agony that Melissa and Andrew went through at the callous attitude of Colin was beyond sanity. Melissa on her part has every right to ask for capital punishment. Note: It is not enough that the injurer has committed a wrong and that she (the victim) has suffered as a consequence. The defendant's liability to the victim and the victim's claim against the defendant depend on the defendant's having breached a duty of care to the victim. This is precisely what Colin did by coming on shore without even attempting to take frantic efforts to locate and save Andrew. "When liability is imposed strictly, the question is whether the defendant has invaded the plaintiff's right. A plaintiff under strict liability does not have to establish the fault of the defendant, though a judgment of strict liability does not necessarily mean that the defendant has acted innocently or justifiably. According to the conventional view, under fault liability, the plaintiff has to establish not only that he was wronged by the defendant but that in doing so the defendant acted wrongfully, that is, without justification or excuse".(The Difference Between Fault and Strict Liability, Theories of Tort Law, plato.stanford.edu)3. 4.0 Conclusion Tort law is applied in cases where small offences are punishable by imposing a small fine or short imprisonment; depending on the intensity of the case occur. In the context of the case relating to Melissa and Andrew, Colin is guilty under the this law, and on the grounds of dereliction of duty can be booked under attempted man-slaughter, a more serious crime that surpasses the Tort law, 5.0 Appendix Tort, http://en.wikipedia.org/wiki/Tort The 'Lectric Law Library's Lexicon on Delict, http://www.lectlaw.com/def/d123.htm The Difference Between Fault and Strict Liability, Theories of Tort Law, http://plato.stanford.edu/entries/tort-theories Read More