Tort Of Negligence Paper
This paper will discuss the hypothetical scenario and case problem 4.4 and its implications on unintentional tort or negligence. It can be found on page 124 of our textbook Business Law Today: Essentials, written by Roger LeRoy Miller and Gaylord A. Jentz.
As read in the case, “Kim went to Ling 's Market to pick up a few items for dinner. It was a rainy, windy day, and the wind had blown water through the door of Ling 's Market each time the door opened. As Kim entered through the door, she slipped and fell in the approximately one half inch of rainwater that had accumulated on the floor. The manager knew of the weather conditions but had not posted any sign to warn customers of the water hazard. Kim injured her back as a result of the fall and sued Ling 's for damages. Can Ling’s be heald liable for negligence?” (p. 124).
The issue presented in this scenario is whether Ling’s Market, the defender, can be held liable for negligence, or not. In order to Kim, the plaintiff, prove that the defendant committed a tort of negligence against her, she must prove that: (1) Ling’s Market owe a duty of care to …show more content…
her; (2) Ling’s Market breached this duty; (3)She suffered a legally recognized injury; (4) Ling’s Market breach caused her injury.
Each one of these items represents an element of negligence.
According to Goldman and Sigismond (2011), negligence is the breach of a legal duty of care that leads to an injury to another or other damage to another’s property (p. 83). Additionally, Miller and Jentz (2011) say that “landowners are expected to exercise reasonable care to protect persons coming onto their property from harm” (p. 113). Later they quote: “retailer and other firms that explicitly or implicitly invite persons to come onto their premises are usually charged with a duty to exercise reasonable care to protect those persons, who are considered business invitees” (p. 113), and that “the landowner also has a duty to discover and remove any hidden dangers that might injury a customer or other invitee” (p. 113). In other words, business owners must employ all possible efforts to protect their customers from potential harms by eliminating all chances of having them getting injured or having their properties damaged. It implies the removal of all foreseeable risks and/or or warning customers about them.
With all the above affirmations, it is possible to define if the defendant owe or not a duty of care to the plaintiff.
The phrase “As Kim entered through the door” indicates that the plaintiff was in the premises of the defendant’s business, which gives her the status of business invitee. This fact makes the defendant owes the plaintiff a duty of reasonable care. This affirmation answers the first element of a negligence tort.
The standard care owed by this defendant is that a reasonable person would have warned the customers about the water hazard and maintained the local as dry as possible to avoid foreseeable risks of injuries or damages to its invitees.
Therefore, where the announcement cites “The manager knew of the weather conditions but had not posted any sign to warn customers of the water hazard” and “she slipped and fell in the approximately one half inch of rainwater that had accumulated on the floor” indicate that the duty of care to the plaintiff was breached by the fact that the manager of Ling’s Market neither had put any sign to inform its customers of the water hazard, nor cleaned up the local where the water was accumulating, which clearly shows that the defendant omitted to perform the basic acts of precaution. These affirmations confirm the second element of the
tort.
In order to prove that negligence was committed, it is necessary that the plaintiff proves that he or she suffered a legally recognized injury or damage (the third element of our list). Actually, the tort law was created to compensate people for legally recognized injuries or damages resulted from wrongful acts (Miller & Jentz, 2011). In the announcement above, we have the following statement: “Kim injured her back as a result of the fall”. Herein, it is assumed that before the defendant to breach its duty of care to the plaintiff, she didn’t have any medical problem in her back; that her injury was gained as a consequence of the fall.
Now it is realized that the defendant breached in his duty of care, and because of this the plaintiff suffered an injury in her back. The wrongful act of the defendant caused the harm to the plaintiff. But to be considered a tort, two questions that the court must address must be answered.
The first one is: is there causation in fact? To answer this question it is used the but-for test ("but for the existence of X, would Y have occurred?" If the answer is yes, then factor X is the causation in fact of Y (Legal Information Institute, 2010)). The answer to this test helps the court to understand how the plaintiff’s injury occurred, and compare the scenario with what would have happened if the defendant conduct was free from negligence (Best & Barnes, 2007). In this particular case, the answer for this test is that more likely than not is that but-for the defendant’s negligence failure to warn customers and clean up the floor, the plaintiff’s injury wouldn’t occour. In other words, the failure of duty of care by the defendant is the causation in fact of the plaintiff injury.
The second question is: was the act the proximate cause of the injury? For this answer to be accepted this as a proof of negligence it must reflect that the connection between the defendant’s conduct and the plaintiff’s harm is strong enough to justify imposing liability to the defendant (Miller & Jentz, 2011). Since there wasn’t any warning sign of the water hazard and there were a puddle of water about one half inch deep, indicating that nobody was cleaning the area, the proximate cause of the defendant’s actions created a foreseeable risk of injury to the plaintiff and other customers.
In the present case, given that all four elements of negligence were proven, I consider that Ling’s Market shall be liable for negligence.
References
Best, A., & Barnes, D. W. (2007). Basic cause-in-fact: the but-for test. In Basic tort law: Cases, statutes, and problems (p. 174). New York: Aspen Publishers.
Goldman, A. J., & Sigismond, W. D. (2011). Torts resulting from negligence. In Buisiness law: Principles and practices (p. 83). Mason: South-Western Cengage Learning.
Legal Information Institute. (2010, August 19). But-for test. Retrieved from Cornell University Law School: http://www.law.cornell.edu/wex/but-for_test
Miller, R. L., & Jentz, G. A. (2011). Torts and ciber torts. In Business law today: The essentials (pp. 97-125, A-2). Mason: South-Western Cengage Learning.
As read in the case, “Kim went to Ling 's Market to pick up a few items for dinner. It was a rainy, windy day, and the wind had blown water through the door of Ling 's Market each time the door opened. As Kim entered through the door, she slipped and fell in the approximately one half inch of rainwater that had accumulated on the floor. The manager knew of the weather conditions but had not posted any sign to warn customers of the water hazard. Kim injured her back as a result of the fall and sued Ling 's for damages. Can Ling’s be heald liable for negligence?” (p. 124).
The issue presented in this scenario is whether Ling’s Market, the defender, can be held liable for negligence, or not. In order to Kim, the plaintiff, prove that the defendant committed a tort of negligence against her, she must prove that: (1) Ling’s Market owe a duty of care to …show more content…
her; (2) Ling’s Market breached this duty; (3)She suffered a legally recognized injury; (4) Ling’s Market breach caused her injury.
Each one of these items represents an element of negligence.
According to Goldman and Sigismond (2011), negligence is the breach of a legal duty of care that leads to an injury to another or other damage to another’s property (p. 83). Additionally, Miller and Jentz (2011) say that “landowners are expected to exercise reasonable care to protect persons coming onto their property from harm” (p. 113). Later they quote: “retailer and other firms that explicitly or implicitly invite persons to come onto their premises are usually charged with a duty to exercise reasonable care to protect those persons, who are considered business invitees” (p. 113), and that “the landowner also has a duty to discover and remove any hidden dangers that might injury a customer or other invitee” (p. 113). In other words, business owners must employ all possible efforts to protect their customers from potential harms by eliminating all chances of having them getting injured or having their properties damaged. It implies the removal of all foreseeable risks and/or or warning customers about them.
With all the above affirmations, it is possible to define if the defendant owe or not a duty of care to the plaintiff.
The phrase “As Kim entered through the door” indicates that the plaintiff was in the premises of the defendant’s business, which gives her the status of business invitee. This fact makes the defendant owes the plaintiff a duty of reasonable care. This affirmation answers the first element of a negligence tort.
The standard care owed by this defendant is that a reasonable person would have warned the customers about the water hazard and maintained the local as dry as possible to avoid foreseeable risks of injuries or damages to its invitees.
Therefore, where the announcement cites “The manager knew of the weather conditions but had not posted any sign to warn customers of the water hazard” and “she slipped and fell in the approximately one half inch of rainwater that had accumulated on the floor” indicate that the duty of care to the plaintiff was breached by the fact that the manager of Ling’s Market neither had put any sign to inform its customers of the water hazard, nor cleaned up the local where the water was accumulating, which clearly shows that the defendant omitted to perform the basic acts of precaution. These affirmations confirm the second element of the
tort.
In order to prove that negligence was committed, it is necessary that the plaintiff proves that he or she suffered a legally recognized injury or damage (the third element of our list). Actually, the tort law was created to compensate people for legally recognized injuries or damages resulted from wrongful acts (Miller & Jentz, 2011). In the announcement above, we have the following statement: “Kim injured her back as a result of the fall”. Herein, it is assumed that before the defendant to breach its duty of care to the plaintiff, she didn’t have any medical problem in her back; that her injury was gained as a consequence of the fall.
Now it is realized that the defendant breached in his duty of care, and because of this the plaintiff suffered an injury in her back. The wrongful act of the defendant caused the harm to the plaintiff. But to be considered a tort, two questions that the court must address must be answered.
The first one is: is there causation in fact? To answer this question it is used the but-for test ("but for the existence of X, would Y have occurred?" If the answer is yes, then factor X is the causation in fact of Y (Legal Information Institute, 2010)). The answer to this test helps the court to understand how the plaintiff’s injury occurred, and compare the scenario with what would have happened if the defendant conduct was free from negligence (Best & Barnes, 2007). In this particular case, the answer for this test is that more likely than not is that but-for the defendant’s negligence failure to warn customers and clean up the floor, the plaintiff’s injury wouldn’t occour. In other words, the failure of duty of care by the defendant is the causation in fact of the plaintiff injury.
The second question is: was the act the proximate cause of the injury? For this answer to be accepted this as a proof of negligence it must reflect that the connection between the defendant’s conduct and the plaintiff’s harm is strong enough to justify imposing liability to the defendant (Miller & Jentz, 2011). Since there wasn’t any warning sign of the water hazard and there were a puddle of water about one half inch deep, indicating that nobody was cleaning the area, the proximate cause of the defendant’s actions created a foreseeable risk of injury to the plaintiff and other customers.
In the present case, given that all four elements of negligence were proven, I consider that Ling’s Market shall be liable for negligence.
References
Best, A., & Barnes, D. W. (2007). Basic cause-in-fact: the but-for test. In Basic tort law: Cases, statutes, and problems (p. 174). New York: Aspen Publishers.
Goldman, A. J., & Sigismond, W. D. (2011). Torts resulting from negligence. In Buisiness law: Principles and practices (p. 83). Mason: South-Western Cengage Learning.
Legal Information Institute. (2010, August 19). But-for test. Retrieved from Cornell University Law School: http://www.law.cornell.edu/wex/but-for_test
Miller, R. L., & Jentz, G. A. (2011). Torts and ciber torts. In Business law today: The essentials (pp. 97-125, A-2). Mason: South-Western Cengage Learning.