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LAW 421 Week 2 DQ Elements of Negligent Tort Analysis and Remedies

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LAW 421 Week 2 DQ Elements of Negligent Tort Analysis and
Remedies
What are the elements of negligence? How does an intentional tort
differ from negligence? Give examples. How does the strict liability
doctrine apply to the practice of accounting? Give examples.
The law of torts can be traced back to English Common Law and has become
and integral part of Anglo-American Law for hundreds of years .These laws
have been modified many times since the late 1800's by state legislatures and
these changes have given plaintiffs more chance of success when bringing forth
their claims. Original tort law included coverage for injuries suffered while in
the workplace but this since has been removed entirely from tort law and
replaced with the state administered workers compensation systems. In order for
a plaintiff to utilize the law of torts certain elements need to be present so that a
reasonable measure of success can be ensured in the outcome.
Elements of Negligent Tort
Negligence is the omission to do something, which a reasonable man, guided
upon those considerations which regulate the conduct of human affairs would
do or doing something, which a prudent, and reasonable, man would not do’ The
essential elements of negligent tort are 1) Duty of reasonable care, 2) Breach of
duty of care, 3) Breach was actual, and proximate cause of injury .Tort is what
is in the tort books but only thing holding it together is their binding’, hence to
win a negligence case, plaintiff must prove each of three elements.
Duty of reasonable care:
According to Negligence law, normally members of society should behave in
ways that avoid the creation of unreasonable risks of harms to others. The
standard for assessing such conduct is called µreasonable care standard and in
most cases the duty to exercise reasonable care, serves as the relevant duty for
the purpose of a negligence claim’s first element .
Breach of duty:

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This is the second element of negligent tort, which requires plaintiff to establish
that defendant failed to act as a reasonable person would have acted, thus
negligent laws focus on reasonableness of behavior and leads to a broad range
of applications in everyday personal life, in business, and personal contexts.
Actual and Proximate Cause:
This is third element of a negligent tort, which is needed in the court to prove
that the defendant’s conduct is the actual cause of plaintiffs injury. The plaintiff
who proves actual cause, has to establish the existence of proximate cause, thus
proximate cause assume the existence of actual cause. The concern of proximate
cause arises, because sometimes it is unfair to hold a defendant liable for all
injuries actually caused by his breach, thus courts typically says that a negligent
defendant is liable only for the proximate results of his breach. Proximate cause
concerns the required degree of proximity or closeness, between the defendant’s
breach, and the injury it actually caused.
Analysis of the concepts, and types of remedies for a tort liability
Duty of reasonable care:
Court holds that the defendant owed the plaintiff, a duty of reasonable care, if
the plaintiff was among those who would foresee-ably be at risk of harm, from
defendant’s activities. Duty of reasonable care runs from defendant to plaintiff,
meaning that whether the defendant breached the duty or whether the requisite
causation link between the defendants breach and the plaintiffs injury is
established. If the court concludes that plaintiff was not among those
foreseeable at risk and the defendant did not owe the plaintiffs a duty of
reasonable care, than plaintiffs negligence claim is dismissed, for failure to
prove required initial element of claim. According to Van Egteren and Smith,
under negligence, determination of liability for damages is a function of the
injurers level of care: if injurer meets or exceeds the legal standard of care, as
defined by the Court, then injurers liability for damages is zero.
Breach of Duty:
In order for breach of duty to take place, there must be a duty owed to the
plaintiff, and the defendant must be neglect of the duty that he owed. In order to
test whether the duty was breached or not, there is a reasonable person test. This
test is objective in two senses. First, it compares the defendant’s actions, with
those that hypothetical person with ordinary prudence and sensibilities would

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have taken or not under the circumstances. Second the test focuses on the
defendant’s behavior, rather than on the defendant’s subjective mental state.
This test allows decision to be made on the facts of the case and for the
prosecution, to determine whether there was reasonable foresee-ability of harm.
According to Mallor even if the defendant has breached a duty, and plaintiff has
actually suffered injury there is no liability for negligence without necessary
causation link between breach, and injury. Hence causation link involves three
issues: 1) was the breach an actual cause of the injury? 2) Was the breach a
proximate cause of the injury? 3) What was the effect of any intervening cause,
arising after the breach to cause the injury? Thus both actual, and proximate,
causes are necessary for a negligence recovery.
Actual Cause:
According to Mallor to determine existence of actual cause, courts employ ‘but
for ‘test, which provides that the defendant’s conduct is the actual cause of
plaintiffs injury, when the plaintiff would not have been hurt, but (if not for)
was hurt for the defendant’s breach of duty. For example, David drove car at
excessive speed on crowded street, so was unable to stop car in time, to avoid
striking and injure Patrick. Patrick would not have been injured if not for
David’s duty-breaching conduct.
Proximate Cause:
According to Mallor the plaintiff who proves actual cause, has not yet
established the causation link necessary to win the case, unless he establishes
the existence of proximate cause. Thus according to the court, negligent
defendant is only liable, for the proximate result of his breach. Thus proximate
cause concerns the required degree of proximity or closeness between the
defendant’s breach, and the injury it actually caused. Thus it is hard to prove
actual causation, and embrace defendant liable for all injuries caused by the
breach of duty. Prosecutors must look for the proximate causation, in
determining whether the tort was negligent or not. Hence court says that
negligent defendant is liable only for the proximate results of his breach. To
resolve the proximate cause, court has not agreed on any appropriate test,
because the question is one of social policy. To decide which test to adopt, court
must recognize that negligent defendants may be exposed to catastrophic
liability by a lenient test for proximate cause but restrictive test prevents some
innocent victims from recovering damages for their loses, hence court has
responded in various ways to this difficult question. Many courts have adopted a
test, under which a defendant who has breached a duty of care is liable only for

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