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What is a 'tort of negligence'?

Negligent Torts

Michael Ehline (Attorney at Law) gives expert video advice on: What is a 'tort of negligence'?; What are the elements of negligent torts?; What is 'standard of care' under tort law? and more...

What is a 'tort of negligence'?

The "Tort of Negligence" is simply a breach of the duty by a wrong-doer of a reasonable standard of care which is recognized by society, as a whole, as being reasonable. It is called the "Reasonable Person Standard". If that conduct is breached and causes somebody damages, those people who were damaged can simply go to court and seek a “Damages Remedy” to be compensated for the harm that occurred to them.

What are the elements of negligent torts?

The elements of negligence are a breach of duty to a known standard of care and that the breach of that duty was the actual cause and the proximate cause of the harm to the plaintiff and in fact the plaintiff was harmed, to which the law applies a remedy.

What is 'standard of care' under tort law?

Standard of care is the standard of care for which a reasonably prudent person in any given fact pattern would abide by. The standard of care for a physician operating on someone would be greater than the standard of care for a non-physician operating on someone, in an emergency for example. So if the physician was to do something for which he was sued for medical malpractice, he would be judged by standard of care that was an objective standard in his field. A common driver of a car who is not a race car driver would be held to the standard of care for which a regular ordinary person on a road would be held to, to drive safely. Usually those duties would mirror the duties in a California vehicle code for example. The standard of care for a race car driver who's out driving on a freeway may be higher if he was sued for negligence for causing an accident because he knew or should have known how to avoid the accident better than an average person.

What is 'malice' under tort law?

Malice is conduct engaged in by a wrong doer that may not necessarily be intentional, but is so reckless or egregious. For example, shooting a gun off in a loaded room full of kids. It is just so crazy and reckless that it will be deemed malicious. And because of that, the law implies that the person who acted with malice may be forced to pay things like punitive damages as opposed to just general damages.

What is a 'duty of care' under tort law?

A "duty of care" is a reasonable "duty of care" to protect the plaintiff from certain types of harm, to not expose a plaintiff to certain types of harm. Examples of a "duty of care" would be the duty to drive the speed limit, if that was the safe speed to drive. However, if traffic is 45 mph on the freeway and the speed limit is 65 and you still drive at 65 mph when it is 45 mph, well you are not abiding by reasonable "duty of care". So just because there may be a law commanding you to do something or giving you a limitation, you have to exercise your own judgment in order to avoid causing harm. That is basically what a "duty of care" is, a duty to abide by a reasonable standard of conduct that will avoid subjecting people to harm.

What is a 'breach of duty of care' under tort law?

A breach of duty of care is simply not abiding by a reasonable standard of conduct that would cause someone harm. And a breach of duty of care for example would be walking next to someone in a subway and just ignoring them maybe running maybe jogging through that subway car and pushing people over. That would be unsafe and that would be a breach of the duty of care you may not be intentionally trying to push people over but because you're trying to for example run a marathon in a train car you're going to cause damage to people and it's reasonably foreseeable that that's going to take place. So if you do that you're going to be breaching your reasonable duty of care to society.

What is a 'breach causing harm in fact' under tort law?

A 'breach causing harm in fact' is simply a breach wherein someone is actually physically harmed. For example, if someone throws a football over a fence and they intentionally try to hit a car and they do hit that car, and the car driver spins out of control and hits his head on the dashboard, that is in fact a breach that caused harm.

What is 'proximate cause' under tort law?

Well unlike actual cause, proximate cause could be a situation where there is more than one factor that caused the injury or harm. It could be a situation where there's a rainy day and the plaintiff auto driver is out on the road, but the car in front of him is being driven by a man who just recently changed his oil and noticed that he had a leaky seal. And he knew that he was leaking oil, but he decided to go out on the road to begin with. Well, the cause of the spin out that would result from the oil and water being mixed would be the actual cause. But the defendant's attorney may argue that your car would have lost control anyway, because there was rain water on the road. But the plaintiff's attorney would correctly point out that it was the mixture of the rain and the oil which caused the spin out, and as a result the proximate cause of the injury was the oil, and because of that the plaintiff's attorney can then sue for a breach under negligence principles.

What is 'negligent infliction of emotional distress' under tort law?

Negligent infliction of emotional distress is also known as parasitic damages. There are many ways in which it can arise. Generally in California one can recover for negligent infliction of emotional distress in different types of fact patterns. Including a funeral home who wrongfully disposes of a body or does something to a body of a family member that it shouldn't have done, or buries the wrong body, or incinerates a body they weren't supposed to incinerate. It could be caused in a situation where a parent or family member sees one of their children being hurt by the negligence of another or perceives that injury not necessarily seeing it. So necessarily under this theory, a blind person can recover for negligent infliction of emotional distress caused by a tort fesier to one of their loved ones if that blind person perceived the injury causing event while it was occurring. It's a sort of negligent damage that you can tack onto other negligence claims that you might have called parasitic damages.