BUS 670: Elements Of Negligent Tort

Elements of Negligent Tort
Gregory Williams
BUS 670
Dr. Mark A. Cohen
19 October 2012

A tort is a civil wrong that is not a breach of a contract. Tort cases and treatises identify different types of wrongfulness, culpability, or fault and define them in varying ways. ort law contemplates civil liability for those who commit torts. This distinguishes it from the criminal law, which also involves wrongful behavior (Mallor, Barnes, Bowers, & Langvardt, 2010). These laws have been modified many times since the late 1800 's 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 (Mallor, Barnes, Bowers, & Langvardt, 2010).
Most torts consist of three elements: (1) the defendant must owe a legal duty to the plaintiff; (2) the defendant violates said duty; and (3) a sufficient causal connection exists between the defendant’s conduct and the plaintiff’s injury (Harper, James Jr., & Gray, 2005).
An integral part of negligent torts is proximate causation. Proximate causation is when acts is not always clear but assume the existence of actual cause. This injury or events is where the plaintiff has the right to bring suit against the defendant for compensatory damages that can exceed the actual costs incurred by the injured party. Along with proximate causation is also the duty to care, which shows that the defendant has a duty to the persons he or she is dealing with to ensure that their actions do not result in injury to any persons that they have business dealings with. Gertsen v. Municipality of Metropolitan Toronto, 1973 is an example of proximate causation (Harper, James Jr., & Gray, 2005). This case highlighted the duty of care and negligence on the part of the Municipality, which operated a garbage dump in the area. They buried the garbage at a certain depth which resulted in the build up and eventual release of harmful gases that caused neighboring home owners garages to explode. The plaintiffs in the case were victorious because the defendants ' were found that they should have known that the dumping and burying of the garbage would have caused the release of gases and also
that they did not show duty of care as it relates to informing the neighboring homeowners of potential dangers to their homes.
The idea of reasonable knowledge is very important aspect of the success of a plaintiffs winning a case under tort law. The defendant has to be aware of the cause and effect of the work they conduct. If a contractor is in business remodeling homes, they need to be aware of all the aspects of the business they are in as it relates to what can occur if they do not complete their job properly. Several years ago, in Ohio I owned a condominium and contracted with a company to enclose the outside rear patio. The company was one which had a great reputation in the area and no issues on record with the Better Business Bureau. The job was completed on time and appeared to be done with high quality and tied into the architecture of the condo as designed.
After the first winter and following spring, in which we had a tremendous amount of rain, the roof and one corner began to leak, but I did not notice until the weather became warmer and I ventured outside to clean the patio to prepare for the summer. I contacted the company and they felt it was not their responsibility to repair since it had been almost a year and they stated they followed all building codes when constructing the patio enclosure. Eventually after many conversations and threats of legal action they agreed that they were liable for the roof and also the damages to furniture that was contained in the patio, they paid for the repair and also replaced the furniture that was damaged by the leaking roof. I was fortunate in this instance since
I did not have to go further with the legal action past the threat of a lawsuit, but if I would have had to pursue this I would have used the aspect of the negligent tort law, since the contractor failed to seal the overlapping areas of the roofing material and also the corners where the roof met the framing, this was in contrast to what the contracting company informed me.
This omission of sealant resulted in the damage and the contracting company should have known this would have occurred over time, I feel that I would have been victorious if I had to utilize negligent tort law to recoup my monetary damages to complete the repairs necessary, given the circumstances surrounding the
findings. Tort law has evolved from its origins in English Common Law, and will continue to evolve as the legal landscape evolves to fit the times we live in (Harper, James Jr., & Gray, 2005). Tort Law is in place to protect individuals who have been the victim of personal injuries or damages against them from the tortfeasor, the person committing the tort, in order for them to regain compensatory damages for the injury or loss due to the negligence of the defendant. As long as the tort contains the three essential elements, the defendant must owe a legal duty to the plaintiff by ways of an agreement or contract, the violation of the agreement and finally, to show a sufficient causal connection exists between the defendant’s conduct and the plaintiff’s injury then the findings of a torts liability will be most likely be a positive one for the plaintiff (Zamore, 2012).

References
Harper, F. V., James Jr., F., & Gray, O. S. (2005). The Law of Torts. Aspen Publishers.
Mallor, J. P., Barnes, A. J., Bowers, T., & Langvardt, A. W. (2010). Business Law: The Ethical, Global and E-Commerce Environment (Fourteenth ed.). McGraw-Hill.
Zamore, J. D. (2012). Business Torts. Matthew Bender and Company, Inc.