Paper Example. Explain the Elements of Negligence in Tort Law

In tort law, negligence is a legal theory that must be proved for an individual to be held responsible for the damage. In a law court, there are four elements, duty, breach, causation, and damage, which must be demonstrated clearly for the action to be stated as negligence (Deakin and Markesinis, 2019). Usually, duty involves the assessment of a negligence claim and seeing if the defendant owes the plaintiff legal obligation care (Cappelletti, 2019). In some situations, the interaction between the parties may create a legal duty.

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The breach is another crucial element that gives the law court an opportunity to determine if the defendant violated the duty agreement (Deakin and Markesinis, 2019). In this case, the law court focuses on a ‘reasonably prudent person,’ which is the legal standard that denotes how the average individual would be reliably acting in a particular condition (Allen, 2019). If the defendant knowingly neglected the action causing damage to the plaintiff, the action is perceived as a breach of duty (Cappelletti, 2019). Causation requires a plaintiff to prove that the defendant’s negligence leads to injury or damage (Deakin and Markesinis, 2019). In some cases, the plaintiff is required to represent measurable proof to determine the damage (Cappelletti, 2019). Damage is the final element, which gives the law court mandate to compensate the plaintiff for the harm. There are different approaches a law court use for compensation, such as monetary and property repair.

Explain what damages may be recovered for negligence

Compensatory damages are paid to reward the plaintiff for the damage, injury, or loss due to the defendant's negligence. The compensatory damage is grouped into special and general (Deakin and Markesinis, 2019). General compensation involves a monetary approach, while special involves replacing a product that has been damaged (Ahmed, 2019). The damage that may be recovered for negligence should be measurable and be determined based on the ‘reasonable person’ (Allen, 2019). The test for determining the damage is done by a judge or jury (Deakin and Markesinis, 2019). As such, the action that the defendant had engaged in should have caused harm, injury or loss.

Additionally, the damage is determined by examining that the action had a loss, and compensation would put the plaintiff back to the position that they were previously (Ahmed, 2019). In this case, all damages are compensable in nature(Deakin and Markesinis, 2019). As such, for an action to be named as ‘damage,’ the plaintiff must prove (Allen, 2019). Prove gives law courts an opportunity to access the loss to determine the level of damage before demanding compensation (Cappelletti, 2019). Furthermore, proof gives law courts a chance to analyze and determine the level and type of damages. Based on the evidence presented, the court may enact punitive damage, which does not involve monetary compensation but engages punishment.

Discuss two defenses to negligence

Despite the damage and injury that may have occurred due to carelessness, there are several negligence defenses that can be deployed. Contributory negligence occurs when both the defendant and the plaintiff are at fault. In this case, the negligence of both parties has triggered the plaintiff’s damage (Deakin and Markesinis, 2019). As such, a plaintiff may have facilitated in his damage when his conduct falls below the ‘reasonable person standard’ (Allen, 2019). The court argues that ‘reasonable individuals’ engage in particular behaviors to protect themselves from injuries (Cappelletti, 2019). Contributory negligence demands that every person should take reasonable step to avoid damage. Assumption of risk is another defense system that occurs when a plaintiff ignores a risk that leads to injury (Deakin and Markesinis, 2019). The assumption of risk may occur when a plaintiff voluntarily enters in a dangerous zone ignoring the risks within the region (Law, 2019). As such, the action of the plaintiff prohibits him from suing the defendant. The law court believes that the plaintiff had the choice to risk, but ignored, causing damage. In a law court, the defendant must show the real risks involved in particular regions, where the plaintiff got the injury (Deakin and Markesinis, 2019). Therefore, the defendant will have shown that the plaintiff fully understood the risk, but voluntary participated in the activity.

Part B

Discuss the basis of Sally’s claim in tort and the damage sought

Based on the fact presented, Sally’s injury occurred due to the negligence of Jack. At first, Jack failed to effectively turn off the water tap, which triggered to snow that leads to Sally’s injury. Despite Jack turn off the tap, he did not take any action toward the flooded area. As such, Jack could have salt and sand the flooded area to control any risk that could occur. Based on the current weather condition, Jack understood the effect of flooded water. However, due to his ignorance, Sally suffered an arm injury, whose cost was about 14,000 to 18,000. In this case, Sally can sue the defendant due to their negligence that caused to the arm injury (Deakin and Markesinis, 2019). As such, the defendant should be in a position to compensate Sally for the loss and harm.

Discuss possible defenses available to the defendant

Despite the plaintiff claiming for compensation due to the harm, the defendants may defend based on the inevitable accident. An inevitable accident occurs when a plaintiff was required to take action in a risk condition (Deakin and Markesinis, 2019). In this case, Sally was supposed to understand how to go along the snot due to its slippery condition. Additionally, the defendant may use the inevitable accident to demonstrate the harm that occurred due to fault caused by the plaintiff. At the 70s, Sally could be experiencing challenges with her feet, and hence, she could be so careful when walking in a slippery ground. At her age, she should be more careful with the snow conditions since it could lead her to injury due to the stability rate. Therefore, she should not engage in some of the activities such as movement on the snow as it risks her life.

Would Green Acres have any liability? On What basis in law?

According to tort law, companies are supposed to be liable for the damage caused by employees. In this case, Green Acres is supposed to take the liability of the damage caused by Jack. The liability occurs on the bases of ‘respondent superior’ (Deakin and Markesinis, 2019). Respondeat superior allows companies to be liable for damage that occurs due to employees’ negligence (Law, 2019). Jack careless left the tap running, which was the cause of Sally’s injury (Deakin and Markesinis, 2019). Companies are required to employ and train individuals to ensure they follow all the guidelines to avoid negative effects such as injury.

References

Ahmed, R., 2019. The influence of reasonableness' on the element of conduct in delictual or tort liability-comparative conclusions. Potchefstroom Electronic Law Journal, 22. file:///E:/6122-Article%20Text-39171-2-10-20191007.pdf.

Allen, C.H., 2019. US Supreme Court bars punitive damages in unseaworthiness claims. Pacific Maritime, p.40. https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1536&context=faculty-articles.

Cappelletti, M., 2019. Comparative reflections on punishment in tort law. Marco Cappelletti,‘Comparative Reflections on Punishment in Tort Law’in Jean-Sébastien Borghetti and Simon Whittaker (eds), French Civil Liability in Comparative Perspective, Hart Publishing. http://www.academia.edu/download/60919520/Cappelletti_16.10.2019.pdf.

Deakin, S. and Markesinis, B., 2019. Markesinis and Deakin's tort law. Oxford University Press, USA.

Law, W.I.T., 2019. Introduction to Tort Law. https://pdfs.semanticscholar.org/d89a/372c77453a658bf379fd8e157a8d10c29535.pdf.