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legalism
legalism, Attorney
Category: Business Law
Satisfied Customers: 8
Experience:  Attorney whose practice areas include landlord-tenant, real estate and business law.
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Discuss the major parts of a negligence case: duty of care,

Customer Question

Discuss the major parts of a negligence case: duty of care, breach of duty, causation in fact, and proximate causation.

My teacher says after completing the lesson that he has devised the question from, I should be able to:

define the three different categories of torts and be able to determine when each should apply
distinguish between different types of intentional torts and know what must happen for each type of intentional tort to apply
explain the elements of negligence, including duty of care, breach of duty, causation, and damages
explain the different types of damages a jury awards in tort cases

So if any of that can tie into the answer, that would be great. Also, please try and use examples. Thanks.
Submitted: 4 years ago.
Category: Business Law
Expert:  legalism replied 4 years ago.

legalism :

In order for a court to uphold a cause of action for negligence, there must be a duty of care owed by the defendant to the plaintiff, and the defendant must have breached that duty. A "duty of care" is a standard of conduct which the law requires a person uphold towards another. For instance, a diver has a duty of care to look and see if there is anybody in the way before diving into a pool.

legalism :

In order for a court to uphold a cause of action for negligence, there must be a duty of care owed by the defendant to the plaintiff, and the defendant must have breached that duty. A "duty of care" is a standard of conduct which the law requires a person uphold towards another. For instance, a diver has a duty of care to look and see if there is anybody in the way before diving into a pool. Furthermore, to sustain a cause of action for negligence, that duty of care must have been breached by the defendant.

legalism :

In our diver example, for instance, the duty of care would be breached if the diver jumped into the pool without looking.

legalism :

Good evening. Are you following me so far?

Customer :

yes i am, thanks for all your help so far!

legalism :

Thanks, glad to hear it. Another essential element of negligence is causation. In torts we're dealing with "cause in fact" and "proximate cause."

legalism :

These two concepts are interrelated. The cause in fact is determined by the "but for" test, whereas the proximate cause is the "primary cause" of the event.

legalism :

Essentially, the proximate cause of the negligent tort must be the breach of the tortfeasor's duty.

legalism :

So in the diving example, if the diver jumped off the board without looking, causing the diver to fall onto a swimmer below, the diver's failure to look would be the proximate cause of the injury and the diver would likely be considered negligent and held liable damages.

legalism :

Any questions so far?

Customer :

nope. i understand clearly so far.

legalism :

Great.

legalism :

Negligence is only one of the three types of torts.

legalism :

The other types are intentional torts and strict liability torts.

legalism :

Intentional torts are categorically different from negligent torts, whereas negligence is a broad category, each intentional tort is specific.

legalism :

For instance, the tort of "Assualt" is defined as the intentional creation of fear in another person of imminent bodily harm.

legalism :

Actually, I shouldn't say "harm" but rather "offensive bodily contact."

legalism :

So, for example, if Person A makes an gesture as if he going to punch Person B, if Person B reasonably believes he is going to get punched, then A has committed the tort of assault. This is true even if B knows that getting punched by A would not cause harm, for instance if B is much bigger and stronger than A, it will still be considered an assault.

legalism :

Each intentional tort is like this, they each have their own analysis.\

legalism :

Any questions so far?

legalism :

Feel free to let me know if you have any questions.

legalism :

The third type of torts are strict liability. In strict liability torts, the tortfeasor is liable for the harm cause by an accident even though there is no negligence.

legalism :

Strict liability applies to accidents cause by "abnormally dangerous" activity. For example, accidents transportation of explosives, or an accident caused by wild animals. So, for example, if an exotic animal collector's pet tiger escapes and mauls somebody, he will likely be held liable even if there was no negligence on his part whatsoever.

legalism :

Damages are a type of remedy. If the plaintiff has successful brought a cause of action for a tort, the jury can award three broad types of damages: nominal, compensatory, and punitive damages.

legalism :

Nominal damages are just what they sound like, a nominal value, usually only one dollar. They occur typically when a tort has been shown to have occurred but no harm was done to warrant compensatory or punitive damages. So let's say that Person B in our earlier Assault example decided to sue Person A for assault, even though he wasn't actually harmed in any demonstrable way. The goal of tort law is compensation; putting the victim in the place they would have been if the the tort had not been committed. So if no harm was done, but a technical tort still took place, only nominal damages will be awarded.

legalism :

Compensatory damages are monetary damages to compensate for the harm that was caused by the tort. These can be, for example, medical bills, lost income, etc. that were cause by the tort. And, remember, the goal of tort law is compensation, so the victim will only be compensated for what was actually lost. So if the fellow the diver landed on in our earlier example receives compensatory damages, it will likely be to pay for the medical treatment for injuries sustained, income lost while he was recovering from the injury, and if the injury cause a permanent disability, he may also be compensated for lost income earning potential.

legalism :

Punitive damages are damages awarded to punish the tortfeasor for grossly negligent or malicious conduct. The public policy goal at work in the case of punitive damages is not compensation, but rather to act as a deterrent to such behavior.

legalism :

So, for example, if an automobile manufacturer released a defectively designed car engine to the public, and willingly covered up information to hide the defect, they would not only be liable for compensatory damages to the victims, but they would also be liable for punitive damages to "punish" their malicious behavior.

legalism :

I hope that answers your questions. Is there anything I should elaborate on?

legalism :

I have to call it a night, but if there is anything else I can do for you please don't hesitate to let me know. Thanks for raising some very interesting questions, it was very enjoyable to discuss this.

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