Essay on "Negligence Torts, Duty of Care"

Essay 3 pages (886 words) Sources: 3

[EXCERPT] . . . .

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).

Proximate causation. While there may in fact be a but-for element involved, the proximate causation test uses a straightforward analysis of the unique circumstances involved in a tortious action to identify causation. In this regard, Black's defines this term as, "That which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the results would not have occurred" (p. 1225). Irrespective of how liability is established, certain remedies based on equity are available for successful negligence tort case plaintiffs, and these are discussed further below.

Types of Available Remedies

Just as the circumstances in each case will be unique, so too are the remedies that area available to the courts. According to Black's, equity is "justice administrated according to fairness as contrasted with the strictly formulated rules of common law" (p. 540). In some cases, strictly monetary damages will suffice to restore plaintiffs to their pre-tort position, while in other cases, injunctive relief or other nonmonetary remedies must be used (Currie, 2008).

Conclusion

References

Black's law dictionary. (1991). St. Paul, MN: West Publishing Co.

Currie, D.C. (2008, Winter). Symposium, remedies: Justice and the bottom line introduction to part two.… READ MORE

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