The four essential elements of negligent tort

Negligent Tort

In basic terms, a tort can be defined as a civil wrong. In this case, it is the victim of wrongful conduct who brings action against the alleged wrongdoer. The alleged wrongdoer in tort law is referred to as the defendant while the claimant or plaintiff is the victim who suffers as a result of the conduct of the defendant. In a way, negligent tort is taken to be the most significant of all torts. In this text, I concern myself with negligent tort.

The Elements of a Negligent Tort

In Stuhmcke's (2001) own words, "negligence is a tort which determines legal liability for careless actions or inactions which cause injury." Hence effectively, its occurrence can be said to take place in those instances where an individual causes harm to another individual as a result of his or her failure to take the legally required care. It can be noted that when it comes to negligent tort, several elements exist. These elements which are essential in proving a negligence action include proximate causation, duty of care, breach and harm or damage (Stuhmcke, 2001).

Duty of care

A duty in this case is essentially taken to be an obligation to adhere to a given standard as provided for in law. According to Statsky (2011), when it comes to negligence cases, the obligation to avoid causing loss or injury as a foreseeable risk by using reasonable care is what is referred to as a duty. Further, it should be noted that when it comes to the duty of reasonable care, there is an embodied standard referred to as due care. Statsky (2011) also notes that in most negligence cases, there is a general rule of duty which calls for the identification of loss or injury as foreseeable risks.

Breach of Duty

As an element of negligent tort, breach of duty arises in an instance where there is reason to believe that the defendant's conduct which appears to be unreasonable caused harm to an individual to whom he owes a duty of care. In this case, if the defendant owes the plaintiff a duty to desist from conduct branded reckless, then such conduct that endangers the claimant would be regarded a breach of duty. It can be noted that when it comes to tort law, difficulties often arise when defining what is and what is not reasonable. With this in mind, Statsky (2011) defines unreasonableness as the failure to avoid damage or injury by using ordinary prudence in the light of the prevailing circumstances.

Damages

This is the actual harm the plaintiff or claimant suffers based on the breach of duty on the part of the defendant. The harm suffered in this case is taken to be a proximate cause of the action or inaction of the defendant. In this case, the plaintiff may be compensated by the defendant for the improperly inflicted harm. It can be noted that when it comes to this element, plaintiffs are mainly protected from physical harm improperly inflicted.

Remedies Available

It can be noted that when it comes to torts, and most specifically negligent tort, damages remain the main remedy sought. With this in mind, I will briefly highlight the kinds of damages that may be sought by plaintiffs in tort actions.

Compensatory damages

The purpose of compensatory damages according to Miller and Jentz (2009) is to see to it that the plaintiff is compensated for the actual losses suffered. Hence effectively, the main goal here remains to put the plaintiff back to the position that he or she was in prior to the occurrence of the tort. Miller and Jentz (2009) further note that this remedy can further be broken down into general damages and special damages.

Punitive damages

According to Emerson (2009), punitive damages may be awarded by the courts so as to punish the defendant for his or her oppressive, malicious or outrageous behavior. These kinds of damages may also be intended to act as a deterrent to others. However, according to Miller and Jentz (2009), punitive damages are not so common in negligence torts. When they are applied to negligence torts, the issue at hand is in most cases a case of gross negligence.

Conclusion

In conclusion, it can be noted that the protection of various interests remains the primary purpose of tort law. Thus tort law is hinged on the societal need to protect various interests including physical safety, property (personal and real) and intangible assets. Hence when such interests are threatened, tort law comes in handy with various remedies designed to compensate the injured party.