THE ELEMENTS OF A NEGLIGENT TORT

The Elements of a Negligent Tort

The Elements of a Negligent Tort

Tort: Injury to Persons, Property, and Relations

Torts are private or civil wrongs or injury, other than a breach of contract, for which courts will award damages and other relief if the person committing the wrong breached a duty. The person who is injured is the plaintiff and the person who causes the injury is the tort-feasor. Tort law can be traced in English common law and has been an integral part of Anglo-American law for hundreds of years. However, tort law has been modified by the state legislature since the late 1800s. During the twentieth century, many laws were passed that gave plaintiffs more rights and better chances of succeeding (Burdick, 2000). Moreover, injuries suffered in the workplace have been removed from tort law completely. All states now have state-administered workers' compensation systems that pay injured workers according to set schedules. Though tort law is a civil matter, in cases where punitive damages are awarded the award is intended as a deterrent analogous to a criminal sanction (Calnan, 2005).

There are many types of torts, but they all share three essential elements: (1) the defendant must owe a legal duty to the plaintiff; (2) the defendant violates that duty; and (3) a sufficient causal connection exists between the defendant's conduct and the plaintiff's injury.

Unlike criminal law, where only the prosecutor may file a criminal charge against a defendant, in tort law only a private citizen may initiate a lawsuit. Though defendants in tort actions cannot be imprisoned their actions, they can be ordered to pay damages to the plaintiff. Moreover, the court can issue an injunction, which is an order that directs the defendant to do or not to do something. In some cases, the plaintiff will forgo a damage claim and seek restitution. This means that the plaintiff wants the defendant to return financial gain that does not justly belong to the defendant. For example, a plaintiff sues a defendant in tort for taking his racing car. The defendant uses the car in a race and wins a $100,000. The plaintiff could ask for damages, but the measure of that might be $25,000 for the rental value of the racing car. However, if the plaintiff asks for restitution, he will seek to claim the $100,000 prizes, as the defendant could not have won it without the ...