Nature of Negligence (Unintentional Tort) Term Paper

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Unintentional Torts

In order to get a good understanding of unintentional torts, it is important to first understand the term tort. The term tort is a French word whose English equivalent is the term wrong. It has also been considered to be a derivative of the Latin word tortum which can be loosely translated as twisted or crooked or wrong (Best, Arthur, and Barnes, 2). It therefore means that a wrong or crooked conduct can be considered to be a tort. For a period of time the use of the term tort in day-to-day speech was common, however, the current use is more confined to the legal system (Calnan, Alan). Thus the brief definition of this term in the legal language is 'a wrong whose remedy will be provided for by the law', this remedy is usually in many forms but more often has monetary value. The entire development process of law of torts happened in the common law courts. This means that judicial decisions were heavily relied upon by the plaintiffs. This means that rules governing the conduct between individuals in non-contractual operations were coined through various court cases. Through contracts individuals can come up with rights and responsibilities of how the operate, however, it was necessary to hold individuals legally accountable for whatever they did even when there is was no contract, thus the need for tort laws. These tort laws ensured that there is compensation for individuals experienced loss due to actions of others.

It is important to note that torts and crimes are different, even though there are a number of acts that can be considered as both crimes and torts. The major difference between these two laws is that in a crime the offender is punished while in torts the victim is compensated (Graham Stephenson). There are three kinds of torts; intentional tort, unintentional tort, and strict liability tort. This paper will discuss on the unintentional torts which is the topic in focus.

What is unintentional tort?

Unintentional tort, which is also referred to as tort of negligence transpires when there is injury suffered by one individual due to another individual's failure to meet required duty of care (Miller, and Jentz, 112). Whereas in intentional torts the offender wishes to achieve the consequences, in unintentional torts the tortfeasor has no wish to make happen the outcome of the act and does not believe that such an outcome would come forth. The conduct of the offender just brings about the risk associated with such an outcome, thus, without the risky situation arising then negligence cannot be considered. In addition, the associated risk must be forseeable, this means that any other person of average reasoning who chooses to participate in the very activity can forestall the risk and avoid it. It is therefore upon the courts to determine whether a conduct is reasonable or not and this is done by considering the nature of possible harm. For unintentional tort to be actionable, there are four elements that must be proven by the plaintiff, these include: 1. Duty of care, 2. Breach of that duty, 3. Injury requirement, and 4. Causation (Miller, and Jentz, 112). This is what can be referred to as the nature of unintentional torts.

Duty of care and its breach

The fundamental reasoning behind the unintentional tort is the idea of a 'duty of care'. The basic reasoning behind this element of duty of care is that, in a society people have the freedom to act as it may please them, however, this freedom is exercised to the extent that the interests of others are not infringed on the process. Each person therefore has the responsibility to exercise reasonable care failure to which there is the potential of committing a tort (Shapo, Marshall S.). An individual may fail to live up to a standard of care by either taking action (such as setting a car on fire) or through omission of action (such as neglecting to put out a campfire). Such acts may be out of carelessness or careful execution, but dangerous still and injury may be experienced. When it comes to the courts, they will consider the nature of the act, the way the act was executed, and the magnitude of the injury. In order to determine if the duty of care has been breached, the court try to find out how an individual considered to be reasonable exposed to the same circumstances would have acted. This is usually pegged upon the way the society expects people to act and not necessarily how a specific person would act. The hypothesis in this case is that a person considered to be reasonable would act carefully, be conscious, honest and even exhibit temperament.

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This expectation of reasonable standard care is a universal concept in business. It should also be noted that in cases of unintentional tort, there is a variation in the degree of care to be exercised, this depends on the occupation and profession of the defendant, and how the defendant and the plaintiff relate among other factors (Miller, and Jentz, 113). Thus in determining whether duty was breached, there is no general law that is applicable, each case is treated and determined uniquely. An example to illustrate the existence of duty of care may be where a supermarket has a wet floor where customers can easily slip. The supermarket owner has the duty to inform the customers of such a slippery floor, failure to do so, the owner would be considered to have failed to exercise a reasonable degree of care thereby exposing the customers to foreseeable of slipping. Another example would be a case where a professional such as a doctor fails to advise a client in the right manner eventually leading to injury, this professional may be sued for malpractice which is essentially professional negligence.

Injury requirement

The other requirement for a tort is the existence of a legally recognizable injury to the plaintiff (Miller, and Jentz, 113). It is only when such an injury has been experienced that the plaintiff can have a chance for compensation. Such an injury may be in form of a loss, wrong, harm, or a protected interest being invaded. This basically means that tort law seeks to compensate for injuries that have occurred and have a legal standing and this must be from wrongful acts. Whenever a person acts negligently yet there are no injuries or harm as a result then there is nothing to compensate thus no tort is considered. For example, if when driving you slightly knock a pedestrian who then stumbles and falls due to the knock, if the pedestrian suffers injury in the fall then you as the driver may be liable for tort. However, if the pedestrian is not harmed then there can be not suit for damages since no injury was suffered. It should be remembered that in most rulings the charges for damages is usually compensatory and not punitive except in cases where it has been determined that the defendant displayed gross negligence.

Causation

From the previous discussion it is clear that when a duty of care is failed and an injury is suffered through a wrongful activity then a tort can be considered. In addition to these, the element of causation is also very necessary and in determining this two questions must be addressed by the court; is there causation in fact? And did the injury occur because of the action of the defendant, or would it have occurred anyway? (Miller, and Jentz, 114) In a case where an injury has occurred due to the defendant's act otherwise it would have not occurred then it is considered there is causation in fact. In determining causation in fact, the phrase 'but for' is commonly used. In theory there is not limit for causation in fact, thus the law must find a way of limiting the options for purposes of practicality, this is done through the concept of proximate cause. For example, a man gets electrocuted when using a defective switch in his house, this switch was installed by the electrician and left in that status. It can be argued that 'but for' the defective switch the man could have not been electrocuted. This may be true since it would not have been possible for the man to be electrocuted if the switch was not faulty, thus the negligence of the electrician is the direct cause of injury. In determining causation, all that is necessary is to prove that there was a reasonable likelihood of probability rather than just possibility. The conduct of the defendant must also be linked directly to the injuries caused to the plaintiff. It is however important to note that it is not possible to achieve absolute certainty when trying to prove circumstantial negligence.

Conclusion

For any tort case to be won, the plaintiff must not only allege but also prove that injury was sustained. In case where fear exists that there might be future….....

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