Negligent Torts Proximate Causation, Duty of Care

¶ … Negligent Torts Proximate Causation, Duty of Care and "But for" According to Bjorklun (1999), the largest amount of litigation in the area of personal injury consists of unintentional torts. The definition provided by Black's Law Dictionary indicates that a tort in general 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" (1999, p. 1489).

As Bjorklun emphasizes, though, "Not every unintentional act that results in an injury to another person or in damage to property is a tort. In day-to-day living, an individual engages in numerous activities that involve varying degrees of risk of injury to another. It is only those acts that are negligent that form the basis for a tort" (1999, p. 82). Therefore, unintentional torts are referred to as "negligent torts" by many legal scholars, professional organizations and practitioners alike (Bjorklun, 1999).

In this regard, Black's advises that the tort of 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 the damages" (1999, p. 1489). In addition, in order for individuals to successfully be held liable for damages resulting from a negligent tort, plaintiffs must sufficiently prove that the defendants were negligent because "negligence does not exist in the air.

One can be negligent in one's actions toward another person only if one owes that person a duty to be careful" (Bjorklun, 1999, p. 82). Therefore, in order to establish negligence, a plaintiff must demonstrate that a defendant owed a duty of care to the plaintiff, that the defendant breached that duty by a negligent act or an act of omission, and that the negligent breach of the owed duty was the proximate cause of the injury or injuries sustained by the plaintiff (Bjorklun, 1999).

The traditional "but for" test used to determine tort liability evaluates whether the plaintiff would have suffered harm "but for" as a proximate cause of the actions of the defendant (Black's, 1999, p. 200). The definition provided by Black's notes that proximate cause is "that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury and without which the result would not have occurred" (p. 1225). If all of these elements can be established, then remedies are available (Bjorklun, 1999) and these are discussed further below.

Types of Remedies Available for Tort Liability The types of remedies that are used to satisfy judgments in negligent tort cases typically include monetary damages, as well as other awards that are intended to make the plaintiffs as whole as possible by returning them to their pre-tort condition (Bjorklun, 1999). These remedies may also include.