Negligence
Most injuries that result from tortious behavior are the product of negligence,
not intentional wrongdoing. Negligence is the term used by tort law to
characterize behavior that creates unreasonable risks of harm to persons and
property. A person acts negligently when his behavior departs from the conduct
ordinarily expected of a reasonably prudent person under the circumstances. In
general, the law requires jurors to use their common sense and life experience
in determining the proper degree of care and vigilance with which people must
lead their lives to avoid imperiling the safety of others.
Not every accident producing injury gives rise to liability for negligence. Some
accidents cannot be avoided even with the exercise of reasonable care. An
accident that results from a defendant's sudden and unexpected physical
ailment, such as a seizure or a blackout, generally relieves the defendant of
liability for harm caused during his period of unconsciousness. However,
defendants who have reason to know of such medical problems are expected to
take reasonable precautions against the risks the problems create. In some
jurisdictions unavoidable accidents are called ACTS OF GOD.
Assumption of Risk is another defense to negligence actions. This defense
prevents plaintiffs from recovering for injuries sustained as a result of a
relationship or transaction they entered with full knowledge and acceptance of
the risks commonly associated with such undertakings. Assumed risks include
most of those encountered by spectators attending sporting events. However,
the law will not assume that individuals accept the risk of intentionally inflicted
harm or damage, such as injuries resulting from Assault and Battery.
Strict LiabilityIn some cases tort law imposes liability on defendants who are neither
negligent nor guilty of intentional wrongdoing. Known as Strict Liability , or
liability without fault, this branch of torts seeks to regulate those activities that
are useful and necessary but that create abnormally dangerous risks to society.
These activities include blasting, transporting hazardous materials, storing
dangerous substances, and keeping certain wild animals in captivity.
A distinction is sometimes drawn between moral fault and legal fault. Persons
who negligently or intentionally cause injury to others are often considered
morally blameworthy for having failed to live up to a minimal threshold of
human conduct. On the other hand, legal fault is more of an artificial standard
of conduct that is created by government for the protection of society.
Persons who engage in ultrahazardous activities may be morally blameless
because no amount of care or diligence can make their activities safe for
society. However, such persons will nonetheless be held legally responsible for
harm that results from their activities as a means of shifting the costs of injury
from potential victims to tortfeasors. As a matter of social policy, then,
individuals and entities that engage in abnormally dangerous activities for profit
must be willing to ensure the safety of others as a price of doing business.
Consumers who have been injured by defectively manufactured products also
rely on strict liability. Under the doctrine of strict Product Liability , a
manufacturer must guarantee that its goods are suitable for their intended use
when they are placed on the market for public consumption. The law of torts
will hold manufacturers strictly liable for any injuries that result from placing
unreasonably dangerous products into the stream of commerce, without regard
to the amount of care exercised in preparing the product for sale and
distribution and without regard to whether the consumer purchased the product
from, or entered into a contractual relationship with, the manufacturer.
CausationCausation is an element common to all three branches of torts: strict liability,
negligence, and intentional wrongs. Causation has two prongs. First, a tort must
be the cause in fact of a particular injury, which means that a specific act must
actually have resulted in injury to another. In its simplest form, cause in fact is
established by evidence that shows that a tortfeasor's act or omission was a
necessary antecedent to the plaintiff's injury. Courts analyze this issue by
determining whether the plaintiff's injury would have occurred "but for" the
defendant's conduct. If an injury would have occurred independent of the
defendant's conduct, cause in fact has not been established, and no tort has
been committed. When multiple factors have led to a particular injury, the
plaintiff must demonstrate that the tortfeasor's action played a substantial role
in causing the injury.
Second, plaintiffs must establish that a particular tort was the proximate cause
of an injury before liability will be imposed. The term proximate cause is
somewhat misleading because it has little to do with proximity or causation.
Proximate cause limits the scope of liability to those injuries that bear some
reasonable relationship to the risk created by the defendant. Proximate cause is
evaluated in terms of foresee-ability. If the defendant should have foreseen the
tortious injury, he or she will be held liable for the resulting loss. If a given risk
could not have been reasonably anticipated, proximate cause has not been
established, and liability will not be imposed.
When duty, breach, and proximate cause have been established in a tort action,
the plaintiff may recover damages for the pecuniary losses sustained. The
measure of damages is determined by the nature of the tort committed and the
type of injury suffered. Damages for tortious acts generally fall into one of four
categories: damages for injury to person, damages for injury to Personal
Property , damages for injury to real property, and Punitive Damages.
DamagesPersonal injury tort victims must normally recover all their damages—past,
present, and future—during a single lawsuit. Damages may be recovered for
physical, psychological, and emotional injury. Specifically, these injuries may
include permanent disability, pain and suffering, disfigurement, humiliation,
embarrassment, distress, impairment of earning capacity, lost wages or profits,
medical costs, and out-of-pocket expenses. Courts typically rely on Expert
Testimony to translate such losses into dollar figures.
Plaintiffs suffering damage to personal property must elect between two
methods of recovery. First, plaintiffs may elect to recover the difference
between the value of the property before the tort and the value of the property
after it. Second, plaintiffs may elect to recover the reasonable costs of repair
for damaged personal property. However, if the property is destroyed,
irreparable, or economically infeasible to repair, damages are measured by the
replacement value of the property. Persons who are temporarily deprived of
personalty may sue to recover the rental value of the property for the period of
deprivation.
Damages for injury to real property may be measured by the difference in the
realty's value before and after the tort. Alternatively, plaintiffs may elect to
recover the reasonable costs of restoring the property to its original condition.
In either case plaintiffs may also recover the rental value of their property if its
use and enjoyment has been interrupted by tortious behavior. Mental,
emotional, and physical harm that is sustained in the process of a tortious
injury to real property is compensable as well.
Punitive damages, called exemplary damages in some jurisdictions, are
recoverable against tortfeasors whose injurious conduct is sufficiently
egregious. Although punitive damages are typically awarded for injuries
suffered from intentional torts, they can also be awarded against tortfeasors
who act with reckless indifference to the safety of others. Because one purpose
of punitive damages is to punish the defendant, plaintiffs may introduce
evidence regarding a tortfeasor's wealth to allow the jury to better assess the
amount of damages necessary for punishment. Such evidence is normally
deemed irrelevant or prejudicial in almost every other type of damage claim.
In addition to damages for past tortious conduct, plaintiffs may seek injunctive
relief to prevent future harm. Manufacturing plants that billow smoke that
pollutes the air, companies that discharge chemicals that poison the water, and
factories that store chemicals that migrate through the soil create risks of injury
that are likely to recur over time. In tort law, operations that produce recurring
injuries like these are called nuisances. If the harmfulness of such operations
outweighs their usefulness, plaintiffs may successfully obtain a court order
enjoining or restraining them.
ImmunityCertain individuals and entities are granted Immunity from both damage awards
and assessments of liability in tort. An immunity is a defense to a legal action
where public policy demands special protection for an entity or a class of
persons participating in a particular field or activity. Historically, immunity from
tort litigation has been granted to government units, public officials, charities,
educational institutions, spouses, parents, and children.
Government immunity, also known as Sovereign Immunity , insulates federal,
state, and local governments from liability for torts that an employee commits
within the scope of his or her official duties. Public policy, as reflected by
legislation, common-law precedent, and popular opinion, has required courts to
protect the government from unnecessary disruptions that invariably result from
civil litigation. Similarly, educational institutions generally have been immunized
from tort actions to protect students and faculty from distraction.In a number of
states, tortfeasors have been given immunity from liability if they are related to
the victim as husband or wife, or parent or child. These states concluded that
family harmony should not be traumatized by the adversarial nature of tort
litigation. Charities and other philanthropic organizations have been given
qualified immunity from tort liability as well. This immunity is based on the fear
that donors would stop giving money to charities if the funds were used to pay
tort claims.
Over the last quarter century, nearly every jurisdiction has curtailed tort
immunity in some fashion. Several jurisdictions have abolished tort immunity
for entire groups and entities. The movement to restrict tort immunity has been
based in part on the Rule of Law , which requires all persons, organizations, and
government officials to be treated equally under the law. Despite the efforts of
this movement, tort immunity persists in various forms at the federal, state, and
local levels.
