Negligence Torts, Duty of Care and Available

Negligence Torts, Duty of Care and Available Remedies

People commit torts all the time, intentionally and unintentionally, and many of these are dismissed, excused, ignored or otherwise allowed to transpire without resorting to litigation for remedies. For instance, if someone's foot is stepped on a couple of times in a crowded elevator, it may be a tort but it also may not be a big deal. In some cases, though, the level of the tort rises to an actionable offense, requiring courts of competent jurisdiction to decide the issues that are involved in order to determine if a civil wrong or injury has been committed and if so, what remedies are available to help make the victim of the tort whole. To gain some new insights into these issues, this paper provides a review of the relevant literature to identify the basic elements of a negligence tort, an analysis of duty of care, as well as actual causation and proximate causation. Finally, a discussion concerning the types of remedies that available to an injured party with a successful tort lawsuit is followed by a summary of the research and important findings in the conclusion.

Review and Discussion

Basic Elements of a Negligence Tort

Although tortious activities may involve criminal behaviors, the criminal elements are not involved in torts because these are strictly civil matters. For instance, according to Black's Law Dictionary (1991), a tort is "a private or civil wrong or injury, including action for bad faith, breach of contract, for which the court will provide a remedy in the form of an action for damages" (p. 1489). More specifically, a negligence tort also involves a duty of care. In this regard, Black's (1991) adds that, "The tort or negligence consists of the existence of a legal duty owed the plaintiff by the defendant, breach of the duty, proximate causal relationship between the breach and the plaintiff's injuries and damages" (p. 1489). A negligence tort is comprised of four basic elements related to such legal duties. According to Postema, "Duty is one of the four official elements of the tort of negligence, and breach of that duty is another element; the remaining two elements of negligence are causation and injury" (p. 219). These four components of a negligence tort are discussed further below.

Duty of Care and Causation

Duty of care. In general, a duty is "an obligation, recognized by the law, requiring actor to conform to certain standard of conduct for protection of others against unreasonable risk" (Black's, 1991, p. 505). More specifically, in negligence cases, the "term may be defined as an obligation to which law will give recognition and effect, to comport to a particular standard of conduct toward another, and the duty is invariably the same, one must conform to legal standard of reasonable conduct in light of apparent risk" (Black's, 1991, p. 505). In order to prevail, plaintiffs in negligence tort cases must establish both the existence of a duty of care as well as a breach of that duty, and these factors depend on the unique circumstances of the case. In this regard, Posteima (2002) advises that, "In this manner, our conception of what we legally owe to others is harmonized with our broader normative conceptions of what we owe others, and we are, to a substantial extent, able to believe that the vulnerability to liability in negligence is limited to cases where we have failed to act toward others in the manner we are otherwise obliged to have done" (2002, p. 220). Establishing liability, though, requires the application of legal tests which are discussed further below.

Actual causation (but-for causation). The "but-for" test is easily applied in a Mrs. O'Leary's cow knocking over the lantern" style. Unfortunately, many cases are not so easily understood. For instance, according to the legal definition, "test used in determining tort liability by applying the causative criterion as to whether the plaintiff would not have suffered the wrong but-for the action of the defendant" (p. 200). Significantly, however, Black's also adds that, "Today, largely discredited as a test because of the many modifications necessary in applying it" (p. 200).