Elements of Negligent Tort: Analysis and Remedies 1

Elements of Negligent Tort: Analysis and Remedies

Rahul Parikh

BUS670: Legal Environment (MAE1139A)

Professor Troy Tureau

October 23, 2011

Negligent Tort 2

Elements of Negligent Tort:

According to Shenoy (2011, p.26), “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 (Mallor et al., 2010, p.168). “Tort

is what is in the tort books, [but] only thing holding it together, is their binding”

(Tofaris, 2010, p.13), hence to win a negligence case, plaintiff must prove each of three

elements (Mallor et al., 2010, p.168).

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 ‘reasonable 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 (Mallor et al., 2010, p.168).

Breach of duty: 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

law’s focus on reasonableness of behavior, and leads to a broad range of applications in every

day personal life, in business, and personal contexts (Mallor et al., 2010, p.168).

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 plaintiff’s 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

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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 (Mallor et al., 2010, p.176).

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 defendant’s breach and the plaintiff’s injury is established (Mallor et al., 2010, p.168). If

the court concludes that plaintiff was not among those foreseeable at risk, and the defendant

did not owe the plaintiff’s a duty of reasonable care, than plaintiff’s negligence claim is

dismissed, for failure to prove required initial element of claim (Mallor et al., 2010, p.169).

According to Van Egteren and Smith (2002, p.369), “under negligence, determination of

liability for damages is a function of the injurer’s level of care: if injurer meets or exceeds the

legal standard of care, as defined by the Court, then injurer’s 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 a hypothetical person with

ordinary prudence and sensibilities would 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 (Mallor et al., 2010, p.169). 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 et al. (2010, p.176), even if the defendant has breached a duty, and

plaintiff has actually suffered injury, there is no liability for negligence without necessary

Negligent Tort 4

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 (Mallor et

al., 2010, p.176).

Actual Cause: According to Mallor et al. (2010, p.176), to determine existence of actual

cause, courts employ ‘but for’ test, which provides that the defendant’s conduct is the actual

cause of plaintiff’s 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 et al. (2010, p.176), 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” (Mallor et al., 2010, p.176). 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

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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 the

“natural and probable consequences” of his action (Mallor et al., 2010, p.176). While in some

negligent cases, the fact that the plaintiff was injured, seems unusual or remote from the

defendant’s breach, despite the existence of an actual causation link, hence presence or

absence of proximate cause, becomes a serious contested issue, and depends on how

narrowly or broadly the court defines the scope of what is natural, and probable, (Mallor et

al., 2010, p.177).

Conclusion:

Duty of reasonable care, breach of duty of care, and breach was actual, and proximate cause

of injury, are three essential elements of negligent tort, and to win the case, one must prove

each of three elements of this tort. “The beauty of tort law is that it retains an inherent

flexibility responsive to societal developments, and new technologies, [but still] courts

addresses the essential, and fundamental issues, of duty, breach of duty, causation, and

damages, (Sharp, 2007, p.36) to prove negligent tort cases.

Negligent Tort 6

References:

Mallor, J.P., Barnes, A.J., Bowers, T., & Langvardt, A.W. (2010). Business Law: The ethical,

global, and ecommerce environment (14th International ed.). New York:

Irwin/McGraw Hill. ISBN: 978-0-07-337764-3.

Sharp, L. (2007), Foreseeability and Flying T-Shirts: Palsgraf Revisited. Sport Marketing

Quarterly, 16(1), 36-37.  Retrieved October 22, 2011, from ABI/INFORM Global.

(Document ID: 1320884551). http://proquest.umi.com/pqdweb?

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Shenoy, G. (2011). Actionable 'Deficiencies' in medical practice. Journal of Gynecological

Endoscopy and Surgery, 2(1), 25-29.  Retrieved October 22, 2011, from Research

Library. (Document ID: 2474482861). http://proquest.umi.com/pqdweb?

did=2474482861&sid=6&Fmt=3&clientId=74379&RQT=309&VName=PQD

Tofaris, S. (2010). WHO PAYS FOR THE SUB-CONTRACTOR'S NEGLIGENCE?

VICARIOUS LIABILITY AND LIABILITY FOR "EXTRA-HAZARDOUS

ACTIVITIES" RE-EXAMINED. The Cambridge Law Journal, 69(1), 13-16. 

Retrieved October 22, 2011, from Research Library. (Document ID: 1980834891).

http://proquest.umi.com/pqdweb?

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Van Egteren, H., Smith, R.T. (2002). Environmental Regulations Under Simple Negligence

or Strict Liability. Environmental and Resource Economics, 21(4), 367-396. 

Retrieved October 22, 2011, from ABI/INFORM Global. (Document ID: 417583371).

http://proquest.umi.com/pqdweb?

did=417583371&sid=1&Fmt=10&clientId=74379&RQT=309&VName=PQD