Introduction Along with the developing industries in the 19th century, came more injuries; since these injuries did not fall under the category of intentional tort, the courts enforced the law of negligence (Weil, N. , & McMillan, R. , 2003). This paper will provide a brief overview of negligent tort and the various remedies for a finding of tort liability. Negligent Tort The elements of a negligent claim include that the defendant owed a duty and breached that duty and that the actual cause of injury was due to this breach of duty (Weil, N., & McMillan, R. , 2003).
When courts are evaluating negligent cases, they evaluate the circumstances on the basis of what a “reasonable person” would do or “reasonable care” that should have been taken. For example, if a tenant’s lease states that the landlord is responsible for maintain the sidewalks and steps and snow removal, and the tenant slipped fell on the sidewalk and broke his/her arm due to the ice on the sidewalk, the tenant would have a good chance of winning a negligent case against his/her landlord (defendant).
The landlord had a duty to keep the sidewalks clear, and breached that duty by allowing the sidewalk to get covered in ice. Since this breach of duty was the cause for the injury, I would say the plaintiff (tenant) could have a chance at winning this case. Proximate Cause When evaluating negligent case injuries, courts will look at the injuries and decide if they accident was the proximate cause for the injuries that are being stated occurred due to the negligence. For example, in the case above, if the plaintiff was stating that he/she broke her toe due to the incident, that is more than likely not the case.
Some plaintiffs may try to get medical costs covered from a previous injury that was not related to the accident, so that is why the courts look at proximate cause. Courts also use the “but for” rule which evaluates whether or not the injury would have occurred but for the defendant’s negligent act (thefreedictionary. com). Using the previous example, the courts would evaluate whether the injury occurred due to the defendant’s negligence or if it could have been caused some other way. Negligence Defenses.
Defendants can use several defenses to when it comes to negligent cases; the first defense is contributory negligence. The contributory negligence defense states that the plaintiff failed to act with reasonable care (Weil, N. , & McMillan, R. , 2003). Based on the example I have been using, the landlord could say that the tenant knew the sidewalks were going to be slick and should have used more caution when going outside. The next defense is comparative negligence; when using this defense, the court basically decides what percentage of fault each party is at and awards compensation accordingly (Weil, N., & McMillan, R. , 2003).
A third defense is assumption of risk; this defense states that the plaintiff was aware of the danger and assumed the risk anyway (Weil, N. , & McMillan, R. , 2003). In the example above, if there had just been an ice storm and the tenant decided to go out, he/she should know that there is a risk of the sidewalks being slick. Conclusion As we can see from the information above, negligence cases can be very tricky when it comes to deciding who is at fault or for what percentage each party is as fault.
In the example I used regarding the icy sidewalk, the landlord had a duty to ensure that the sidewalks were kept clean, but at the same time, the tenant should have also used caution when going outside if there were adverse weather conditions. Although, even if the tenant had used extreme caution, accidents can still happen.
References www. thefreedictionary. com http://legal-dictionary. thefreedictionary. com/But+for+causation Mallor, J. P. , Barnes, A. J. , Bowers, T. , & Langvardt, A. W. (2010). Business law: The ethical, global, and ecommerce environment (14th ed. ). Boston, MA: McGraw-Hill Irwin.