Term Paper on "Torts Tort Is a Wrongful Act"

Term Paper 5 pages (1838 words) Sources: 1+

[EXCERPT] . . . .

Torts tort is "a wrongful act other than a breach of contract that injures another and for which the law imposes civil liability: a violation of a duty (as to exercise due care) imposed by law as distinguished from contract for which damages or declaratory relief (as an injunction) may be obtained" ("Tort"). There are two types of acts that yield tort liability, negligent acts and intentional acts, and those acts yield negligence and intentional tort claims. In fact, "tort law is one of the major areas of law (along with contract, real property, and criminal law) and results in more civil litigation than any category" (Hill). In fact, to the consumer who is unfamiliar with legal terminology, most torts are referred to as "personal injuries" and are handled by personal injury attorneys.

Although harm to an individual is required in order to establish a tort claim, harm is not sufficient to establish a tort claim. Instead, tort claims are based upon three factors: "wrong, harm and an appropriate relationship between the injurer's wrong and the harm to the victim" (Coleman). Furthermore, "the law does not recognize all harms as grounds for a claim in torts," but requires that the harm be the result of a violation of some type of duty between the parties (Coleman). Therefore, one of the most important elements to a tort claim is that the alleged tortfeasor breached a duty to or otherwise perpetrated a wrong against the alleged victim.

However, even in the area of intentional torts, it is not necessary that the tortfeasor intend to harm the victim. The idea behind an intentional tort is that the tortfeasor intended to do the action. For example, one who publishes false information about a person in a newspaper may be liable for libel or defamation of character, even if they believed the information to be true, as long as they intentionally caused the publication of the article.

The concept of duty can be difficult to understand, in part because a person's duty, even when guarding against the same type of harm, changes with the relationship between the parties. Furthermore, duty can foisted upon a person, through no fault of their own. For example, in the area of real property torts, there are at least three standards of duty. The lowest standard is the duty one would owe to a trespasser. Even though a person might be a trespasser on private property, the property owner owes that person the duty of keeping the property free of traps. Therefore, a property owner who sets a gun with a spring on the trigger, set to go off if a burglar enters the building, has violated his duty to the burglar. Even though the property owner has not invited the burglar into his home and the burglar wishes to do harm to the property owner, the property owner still owes the burglar a duty not to set booby traps.

Property owners can even face an enhanced level of liability for trespassers. One way this can occur is when the property owner has an attractive nuisance. One example of an attractive nuisance is a swimming pool. If a property owner has a swimming pool, he may be required to take certain precautions to prevent children from entering into the pool, even though those children are technically trespassers. His duty to prevent the harm from an attractive nuisance is higher than his duty to prevent harm in other areas.

As can be expected, as the relationship between two people increases, the duty each person owes to the other also increases. Therefore, a person who has entered into a store for the purpose of doing business with that store can expect a higher standard of care than someone who enters the store in order to rob it. Therefore, a customer who slips on spilled liquid may be able to recover from a store owner, while a robber would not be able to recover from that same accident. The store owner owes one duty to his invitees, which includes the customers of his store, and another to trespassers.

Of course, duty does not arise only in the area of property law. Duty can also arise in other situations. For example, a restaurant owner has a duty to provide his customers with non-toxic food. If he fails to do so, but instead serves the customers something that gives them food poisoning, he may have breached his duty to his customers.

The highest level of duty comes when people have entered into specialized relationships. For example, doctors and lawyers have heightened standards of duty towards their clients or patients. Breach of this duty gives rise to malpractice liability. For example, if a doctor prescribes a drug to a patient, which the doctor knows will cause an allergic reaction in the patient; the doctor would be liable in tort. However, a drug store clerk that sold a customer an over-the-counter drug that caused the same allergic reaction would not be liable to the customer. The standards of duty are different.

In addition to duty, there are also different standards of care. Standards of care are important, because they establish the basic standard for shifting liability, which is the purpose of tort law. Tort law exists to try to make the most responsible party legally liable for the cost of the action. Therefore, or the most part, tort liability cannot arise unless one has acted in an unreasonable manner. For example, a driver that sideswipes another car in order to avoid hitting a toddler that has darted into the road, has not acted in an unreasonable manner. In fact, it would have been unreasonable for the driver to elect to hit the toddler rather than the other car.

Therefore, the driver would probably not be held liable for damages to the other car. However, both drivers could seek redress through the toddler's parents or caregiver for the injuries to the car.

The general standard of care is that a person act reasonably. However, certain occupations or pastimes are so dangerous that they give rise to heightened standards of care, or even strict liability. Strict liability creates automatic responsibility, without having to prove negligence, for damages arising from the possession or use of certain items. For example, a person that chooses to keep a vicious dog that has previously attacked people can be held liable if the dog attacks again, even if the pet owner was not negligent.

Once a plaintiff has established a duty and a breach of the standard of care, the plaintiff still has to demonstrate that the defendant's wrong caused the injury. Without causation, there can be no liability in tort. Therefore, it can be very important for a plaintiff to document what has caused a particular harm. A person that leaves their vehicle unattended, with the parking break off, on the hill, would be liable for harm done by the car as it rolled down the hill. The improperly parked call was directly responsible for the damage to the cars below it. However, a person that leaves their vehicle unattended, with a key inside it, may not be responsible for damages done to other cars by a thief who steals the car. The thief stealing the car is an intervening variable, and may serve to relieve the car's owner of liability. However, if a city has a law prohibiting people from leaving their keys in their cars, for the purposes of avoiding that type of problem, the car owner could be held liable for the resulting damages.

Furthermore, plaintiffs do not always have to prove causation. Under the theory of res ipsa loquitur, a plaintiff can recover if they can demonstrate that it is likely the defendant was liable, but the plaintiff is unable to prove it. In order to prove negligence under res ipsa loquitur, a plaintiff must demonstrate that a defendant had exclusive control over whatever caused the injury. In fact, many medical malpractice lawsuits are prosecuted under theories of res ipsa loquitur. For example, a patient who enters the hospital for one type of surgery and receives another may not be able to prove negligence. The patient is under anesthetic at the time of the surgery, and cannot testify to negligence by the surgical team. However, the surgical team had exclusive control of the patient while he was anesthetized. Therefore, the presumption arises that they were responsible for any negligence that occurred during the surgery. Of course, res ipsa loquitur is only a presumption, which can be defeated by proof that another party caused the negligence.

Although harm has to be reasonably foreseeable, tortfeasors do not get to choose their victims. What this means is that, if harm to a victim is foreseeable, but that victim's particular condition exacerbates the harm, the tortfeasor is liable for all of the injuries. For example, if tortfeasor drives his car in a negligent manner, causing it to strike another car at a relatively… READ MORE

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