Torts and Remedies

Torts and Remedies

Courts created the law of negligence for cases when injuries to persons did not fall under the framework of intentional torts because most of these injuries were unintentional. Negligence occurs when someone suffers an injury at the hands of someone who did not want the injury to occur and did not believe it would occur; the element of intent must be missing. In order for a claim of negligence to valid certain elements must be present and proven by the plaintiff. The elements of a negligence claim are:

1. that the defendant owed a duty of care to the plaintiff,

2. that the defendant committed a breach of this duty,

3. and that this breach was the actual and proximate cause of the injury experienced by the plaintiff (Mallor, Barnes, Bowes and Langvardt, 2010).

Duty of care is a requirement that a person act towards others with the same reasonable amount of care that a reasonable person in the same circumstances would. If a person’s actions doe not meet this basic standard of care then those acts are considered to be negligent. The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others (Miller and Jentz, 2006). To determine if a duty of care was breached, courts use the “reasonable person standard”; they ask how a reasonable person would have acted in the same circumstances (Miller and Jentz, 2006). The standard by which a reasonable person would act is based on society’s judgment of how people should act.

Another element that must exist for a tort to be negligent is proximate cause. Proximate cause exists when the connection between an act and an injury is strong enough to justify imposing liability (Miller and Jentz, 2006). In order to determine proximate cause, the court asks two questions:

1. Does a defendant’s duty of care extend only to those who may be injured as a result of a foreseeable risk?

2. Or does it extend also...