Elements of Negligent Tort Analysis and Remedies

Introduction 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 1800s 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†¦show more content†¦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 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 breac h, 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. 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