Running head: ELEMENTS OF A NEGLIGENT TORT

Elements of a Negligent Tort Rene Gonzalez Jr. Ashford University Legal Environment BUS 670 Anthony Patete April 9, 2012

ELEMENTS OF A NEGLIGENT TORT Introduction A tort is a wrongdoing separate from a breach of contract. In this essay, I will detail the specifics of a negligent tort in relation to its establishment and defense in court. We will look at proximate cause in respect to duty of reasonable care, followed by an explanation of proximity cause and causation link, and how these elements contribute to the resolution of a negligent tort case. Negligent Tort In a tort, case treaties are categorized by wrongfulness, culpability, or fault, and then separated as four types: intent, recklessness, negligence, and strict liability. A negligent tort occurs from lack of reasonable care that results in harm to another. Reasonableness stems from what is thought of as the norm for society; the actions of a "reasonable person," or the "reasonable care" of a person (Mallor, Barnes, Bowers, & Langvardt, 2010). Negligence law, or duty of reasonable care, is based on how a normal person should behave. Thus, a normal person's actions would prevent unreasonable risk of harm to another (negligence). According to Mallor (2010), there are three elements of negligence claims: "(1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant committed a breach

of this duty; and (3) that this breach was the actual and proximate cause of injury experienced by the plaintiff, (p. 206)." Furthermore, reasonable care directly relates to the first two elements of negligence claims. However, in claims of negligence (negligent tort), the plaintiff will need to prove all three elements of negligence to signify lack of reasonable care on the defendants part. Proximate Cause How do you prove a complete, negligent tort case? Merely proving cause of injuries is not sufficient enough. In a negligent tort case, it is imperative that a plaintiff not only prove

ELEMENTS OF A NEGLIGENT TORT

sustainment of injuries (after negligence at hand), but also the proximate cause (direct connection to negligence at hand). A plaintiff who proves their case based on injuries alone will not win full compensation from the defendant. There must be proximate cause in relation to injuries; the proof that an issue at hand (negligence) undoubtedly caused all sustained injuries. It would be unfair to subject a defendant to full compensation costs without distinguishing a connection between the plaintiff's injuries and the negligence. The goal is to compare injury sustainment with the issue at hand (pertinent injuries vs. irrelevant injuries). It is possible for a series of unfortunate events to unfold after a negligence issue, which later triggers additional nonrelated injuries to plaintiff (Mallor, et al, 2010). Causation Link How does one win a negligent tort case? Winning is dependent upon which side of the case you stand on (plaintiff or defendant). Nevertheless, the key is to prove (plaintiff) or disprove (defendant) the causation link. Liability is distributed in this manner--proving causation link. Regarding defendant's breach of duty and plaintiff's sustainment of injuries, Mallor (2010), stated, "...there is no liability for negligence without the necessary causation link between breach and injury, (p. 224)." Furthermore, to answer causation, there are three questions of concern: (1) Was the breach an actual cause of the injury? (2) Was the breach a proximate cause of the injury? and (3) What was the effect of any intervening cause arising after the breach and helping to cause the injury? Proving or disproving the causation link reflects where liability lies, and depending upon which side of the case you stand, it will reflect who wins the case (Mallor, et al, 2010).

ELEMENTS OF A NEGLIGENT TORT

References Mallor, J. P., Barnes, A. J., Bowers, T., & Langvardt, A. W. (2010). Business law: The ethical, global, and e-commerce environment 14th ed. New York: McGraw-Hill