Tort Law is a field that encompasses material of considerable breadth and diversity and whose existence, as a reflected in individual actions seeking civil redress for injuries nor arising out of contractual relations can be traced can be traced back to primitive societies. (White, 2003 p. 23) A ‘tort’ is a Norman word for a ‘wrong’ but ‘torts’ have typically been distinguished from crimes and from ‘wrongs’ identified with contractual relations. Tort Law is concerned with civil wrongs not arising from contracts.
We can see the shifting character of Tort Law in nineteenth and twentieth century America as deriving from the shifting ideas of legal scholars and judges particularly ideas about the civil responsibilities of a person to his or her neighbors in society and about the manner in which society should respond to injuries and injured people. An independent identity for Torts late in the nineteenth century is the affection of tort doctrines, especially negligence, to the problems produced by industrialization.
Industrialization has played a part in creating the climate of intellectual legal opinion and it affected torts as an independent category of law. Some certain lawyer-intellectuals in the development of legal doctrine in America, who were academicians after 1870, significantly affected the content of tort rules and doctrines and also affected the changing state of tort law in America. There are many categories of Torts. It divided three parts which are Negligence, Intentional Torts, and Quasi-Torts (Liability Torts).
The standard action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another's enjoyment of his real property.
Worker’s compensations, injuries sustained during employment are grouped into quasi-torts or liability torts. Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to confirm his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach. In this paper I am going to explain Negligence in details.
It is assumed that the principles of negligence comprise the field of tort law, and that fault is the most common basis for determining liability for harmful conduct. (Peck, 1971) The principles of basing awards for accidental injuries on negligence achieved this status in the 19th century. The law has its creative skeptics too. People began to question entrenched negligence law, willing to challenge but also to defend. There is any place for negligence in modern tort law. But skepticism of the challenge reminds us of the danger of pressing the inquiry.
We must ask not only whether there is a place but also what the place for negligence is in modern tort law. To put a point on negligence, we should consider what objectives it is able of serving and how its performance measures against that of alternative principles. In short we should know paradigm of the cause of action for negligence. We must know the concepts of negligence like duty of care, standard of care, causation, remoteness of damage, defenses and special duty situations. There are some elements in determining the liability for negligence.
The plaintiff was owed a Duty of care, there was a Dereliction or breach of that duty, the tortfeasor directly caused the injury, the plaintiff suffered Damage as a result of that breach, and the damage was not too remote; there was proximate cause. The main function of duty of care is to delimit the scope of legal protection against inadvertent, negligent harm. (Mendelson p. 256) This function of duty of care is similar to that of the remoteness of damage. Duty of care concerns the relationship between the defendant and the plaintiff.
There is a necessity that the defendant has to take proper care to avoid causing injury to plaintiff in all the circumstances. The defendant and plaintiff may be within special relationship or outside of these relationships. The courts observe the existence of a duty of care. There could be specific relationships like employer to employee or doctor to patient. The concept of duty of care protects interest against unreasonable risks with law by requiring the defendant to act with reasonable care. These reasonable acts can be measured by the standard of care of a notional reasonable person.
The responsibilities for injuries are more a matter of public policy than of jurisprudential considerations. According to Beven’s Principles of the Law of Negligence there has been a tendency to regard negligence as a separate tort governed by a general concept of duty of care based upon a reasonable foreseeability of risk to a person or persons affected by the defendant’s acts or amissions. (1889) The reasonable foreseeability and the principle that wrongful conduct will atrack legal liability only where the category of right or interest violated is within the defendant’s duty of care.
There can be negligence occasioned emotional harm in other words nervous shock or there can be economic loss which caused damages for other people. These all can count as negligence. As a human we all have some responsibilities for our neighbor’s welfare. Duty of care is for protecting other people’s welfare. If you steal something or you lied then you should be punished for these wrong actions. Maybe you don’t have to give money to the poor people but you have to act responsibly to others. Also there are some duties when one party breaches his duty to another.
This duties gives courts the right to order that one person pay for the damages he causes to another. If someone breaches his duty to another he or she may be liable in either a civil court or in criminal law (if duty is serious enough). On the other hand there is no cause of action for all duties like promises marriage if there is no special contract for marriage between two people. Duty of care creates a responsibility in us and gives courts power to require us to compensate for the damages. People must prove the injury to make other people to pay for their damages.
If you want to make a court to enforce a duty you must prove the damage. So the duty must be reasonable and provable. If someone hits to another’s car the damage can be proven easily. The guilty one can be forced to pay the damage. Negligence is the lack of care or concern for responsibility. Maybe you do not intent to injure someone yet everyone has a duty to care for others to protect them from injuries. Careless acts may give a cause of action even there is no intention to harm. Proximate cause is the primary cause of an injury.
It is not need to be happened in closest time. There should be the first event that sets in motion a sequence of events leading to an injury. In other words the injury could be a consequence of a former accident. People have a right to expect compensation for this damage if he or she can prove it. For example, if you had a car accident three years ago and now you have headaches for some brain damages because of this accident you can sue the people you hit you. But you have to prove that this car accident caused you a brain damage.
Proximate cause is one of determining when a tort-feasor shall be exempt from liability for effects to which his wrongful act actually contributed. (Carpenter, 1932) There are many elements which are prerequisites to liability and they must be differentiated from that of proximate causes. The plaintiff must not have defeated his right or exclude himself or herself from bringing an action by his own conduct. The act must have been wrongful in law. Proximate is most commonly used by the courts to express the relationship of cause to consequence. There may be some misapplies the principle in law.
For example courts may think that there is a one proximate but there can be more proximate that cause damage. This fact should be considered. Professor Joseph H. said that “The consequences of an act may be innumerable; to trace them would require infinite time and patience. ” (1924) If tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. This is called rescue doctrine. In today’s world individualism is everywhere people only think about themselves.
Law may set necessary guidelines for social conduct on the other hand it cannot structure all of social life. Morality required much more from the individual for duties to others. The law may be helpful to maintain this fabric morality. A duty of care may save lives and reduce the cost of rescue operations. There is a rule that permits the rescuer compensation for injuries incurred during the rescue attempt. (Lipkin, 1983 p. 261) On the other side when a person is in life threatening circumstance he or she may lack the ability to help the others for his or her own safety.
In this case person has a right to avoid danger in emergencies. Duty of rescue derives from the rescuer’s ability to rescue a person whose physical integrity or life depends upon rescuer. If you are able to help someone else who is in danger you should help. Essentially, in its pure form the Rescue Doctrine boils down to 4 main elements - all of which must be met in order to bring it to bear for the person asserting its privilege. There must be peril or the appearance of peril to a third party, caused by the defendant.
That peril or appearance of peril must be imminent A reasonable person would recognize the peril or appearance of peril and the plaintiff must also have actually recognized it. The plaintiff must have exercised reasonable care in effecting the rescue. To conclude, in tort law three are some factors that must be established like defendant must be under a legal duty to act, the plaintiff must show that the defendant breached the duty and the plaintiff must prove that he or she suffered injury or loss because of the defendant’s breach.
There are many torts can be applied like intentional torts, negligence and liability torts. Negligence is one of them and it is one of the most important torts. The failure to exercise the care toward others and not taking the proper precautions may cause negligence. Negligence can result accidents causing physical or property damages. We should prevent reasonably foreseeable damages and should be careful about others.