The tort of negligence takes place when a party has to act according to his duty of care but violates the duty by either doing an action or not doing one. When the duty is not performed or is violated another party is harmed. The harmed party is the plaintiff. Here, it can be easily seen that it completely differs and virtually acts as the antonym of intentional torts where the defendant has the knowledge and intention of what he’s doing.
In this type of tort the defendant might not have any intentions of violating the duty but the negligence might result in so. In order for a plaintiff to strengthen and prove the negligence tort on the defendant he must make sure that the following elements have been analyzed and can be established as evidence against the defendant.
Standard Of Care
Standard of care is the expectation from a party in terms of care that the party must show so to stay away from the liability of negligence. The defendant should act within these boundaries just like a normal and sane person does in normal circumstances. Standard of care is not considered as strict liability. Whatever the defendant has done is put in comparison with what a prudent person would do in normal circumstances.
Duty Of Care
This is the duty on the defendant who must prevent unreasonable risks and harms from coming onto the plaintiff. The effect of the transaction on the plaintiff, future prevention policy, suffering and injury of the plaintiff, expected harm, conduct of the defendant and its connection with the harm caused and moral liability of the defendant are the determining factors of duty of care.
Breach Of Duty
When the conduct of the defendant shows that he has not been able to meet the standards of care or has violated the lines, breach of duty is proved. It is again compared with how a reasonable person would have acted and behaved if he was in the same situation. How unreasonable the conduct of the defendant was at the time of the happening gives a measure of the risks that must have been forestalled or foreseen. What happened after and what risk was the plaintiff exposed to after the conduct of the defendant are not to be considered.
Cause In Fact
It is most important for the plaintiff to prove that the harms caused to him are the result of the conduct of the defendant. There must be a connection or the cause in fact is not proved.
Proof Of Breach
This is a method used in order to prove that the harm caused by the conduct of the defendant was against or in conflict with the established customs.
When the injury is not considered remote and it said that the injury could have been foreseen by the defendant’s actions, it is called the proximate cause. The main factor in question here is foreseeability. The defendant is held responsible/liable for the harm that he could foresee at the time of his conduct as the reasonable effects of his conduct.
Even if all the above elements are present, unless there is appreciable, viable harm to a victim, there is no case. Damages are reduced to monetary payments, as opposed to jail. They must be foreseeable, certain and unavoidable.
Negligence damages fall into several categories as follows:
- Special damages are economic damages, such as medical bills, like ambulance or hospital bills.
- General Damages.
- Punitive or “Punishment” Damages.
Special damages also include damages for future nursing care and prescription drugs to name a few. Special damages also include property damage for a total loss of a vehicle and for lost past wages, and lost future wages. Special damages also include past, present and future lost wages.
General damages include money damages for physical and mental pain and suffering.
Punitive damages are sometimes available for reckless and intentional conduct to punish the evil-doer. These damages must be deemed reasonable and necessary.
Other Damages Issues
A car accident victim cannot be unreasonable and mustn’t overtreat and cause medical bills. This is especially a hotly contested issue in soft tissue cases, where an injury victim suffers primarily subjective injuries, as opposed to objective injuries such as those that could be seen objectively in a catscan or x ray. Objective injuries include broken bones and other orthopaedic injuries, including fractured skull.