[Student Name] 1L
[Student Email Address] Negligence
[Date] Midterm Mini Thesis Paper
Defining the Tort of Negligence and its Impact on Individuals and Organisations in the United States
Tort law is a subclass of law generally concerned with whether such injuries are to be compensated for by the person whose acts or omissions caused the damage. A suit in tort is a civil law suit, in contrast to criminal prosecution. The injured party (now the plaintiff) initiates the cause of action (Could also be a business or an institution) and not the State as is in a criminal matter. In this action, the plaintiff will seek in tort to get compensation. Damages will be in the form of monetary compensation. Compensation is based on the victim’s loss, for example, personal loss, damage to of property, losses in one’s economic interests, or injury to reputation (Hubbard, P. The Nature and Impact of the Tort Reform Movement. (2006) Hofstra L. Rev., 35, 437. Hereafter, The Nature and Impact of Tort Reform).
A tort is French for ‘wrong,’ and we can thus say that a tort is a civil wrong. The number of acts or omissions that are considered torts depends on specific shared elements and components. Tortious liability arises in all torts have certain aspects in common. Although the salient conclusive features of each tort differ, these elements are evident in each tort. Torts are classified into Tort of Negligence, vicarious liability, product liability, and intentional torts. Both intentional torts and negligent torts infer liability on the defendant. In the case of strict liability torts, by contrast, though there may be no liability, tort law will need a defendant to reconcile for the insured’s injuries even where the defendant was not negligent and had no malice.
The development of Tort law undoubtedly led to significant impacts on individuals, businesses, society, and organizations. This paper will seek to assess the impression left by the tort of negligence on the selected fields of medicine, production and manufacturing industries, and professional practitioners.
Defining Negligence
Negligence arises when an individual (defendant) is expected to conduct him/herself in a particular manner but fails to do so, for example, where the defendant is under a tortious duty to act in a specific manner concerning the plaintiff and omits to do so. Hence, it is a failure to dispense the care that a reasonably sensible person would exercise in the same conditions (Winfield, H. Duty in Tortious Negligence. (1934) Columbia Law Review, 34(1), p.55). Unlike intentional torts like battery and assault, negligence encompasses injury caused by carelessness, not deliberate harm.
For a cause of action in negligence to succeed, the plaintiff needs to prove that the three components of failure were present in the defendant’s acts or omissions. These three are sequential and mutually inclusive. All three elements must be present for the defendant to be found liable for the tort (Dobbs, B. The Law of Torts, (2000) West Group, S.T. Paul, Minn. Hereafter, The Law of Torts).
First, each individual owes a duty of care to other people in society, and a failure to discharge of care amounts to a tort. He/she ensures that his/her actions or omissions do not cause injury to other people. Therefore, the negligence rule could be referred to as the shortfall from due care (Jain, S. On the efficiency of the negligence rule. (2010) Journal of Economic Policy Reform, 13(4), p. 353). This concept gained its prominence from Lord Atkin’s conceptualization of the “Neighbor Principle.” He summed up the principle stating: “All members of a civilized society are under a general obligation towards their neighbors to do them no hurt without lawful cause or excuse” (Donoghue v Stevenson [1932] AC 562.). The term neighbor was defined to mean someone who will be affected directly or indirectly by another person’s acts or omissions. The 2nd person should have him in reasonable contemplation before commission or omission of the action. This principle can be seen in its application in previous and later cases when dealing with strict liability tort. Here a person is under a duty to ensure that a matter in his control should not cause injury to another party were this thing to escape (Rylands v Fletcher, (1868) LR 3 HL 330 and Department of Environmental Protection v. Ventron Corp. (1983)94 N.J. 473)
Second, for a suit of negligence to succeed the plaintiff should show that the defendant had breached the duty of care. For the defendant to be held liable, his/her acts or omissions are done in breach of duty of care, breached the legal duty of care for liability to attach. The test for breach is that of the reasonable man (Splane, I. Tort Liability of the Mentally Ill in Negligence Actions. (1983). The Yale Law Journal, 93(1), p.157). The test of the reasonable man asks the question: “Would be what a reasonable person under the circumstances would or would omit to do?” It, therefore, depends on the circumstances of the case because what is reasonable in one case may not be so in another (Biakanja v. Irving (1958) 320 P.2d 16).
Concerning this component, the court can either apply an objective or a subjective standard. The court chooses to adopt an objective standard that makes no allowances for a specific person’s capacities or peculiarities. However, where a subjective standard is applied, a person’s conduct is judged based on that specific person’s qualities and aptitudes rather than those possessed by the “reasonable person” (Ibid).
As Seavey notes, a subjective standard would benefit mentally ill patients who, due to their illness, are not in a state of mind to comprehend their acts. Therefore, the court could hold him/her to a less severe standard of tort liability than that for an average person. For instance, where the individual’s mental illness was satisfactorily severe to prevent him/her from applying “reasonable care,” then he/she would not be found accountable for negligence in cases where the typical person would be held responsible. Thus, the subjective standard could allow, in practice, an argument that mental illness could act as immunity to tort liability (Ibid).
The third component is that there must be a causal connection between the defendant’s act and the plaintiff’s loss. This is an issue of fact. The plaintiff has to show that the damage would not have happened but for a particular fault (Cork v Kirby Maclean, Ltd [1957] 2 ALL ER 402). The actions leading up to the injury should form a continuous chain of events. The chain between the act and the injury suffered must not be interrupted. If there are intervening acts in between, the court must determine the effect of such intervention on the defendant’s liability (Wright, R. Causation in tort law. (1985) Calif. L. Rev., 73, 1735.). The courts have hence applied the “but-for test.” That is: the injury could not have happened but-for the defendant’s negligence. The burden of persuasion to prove “but-for” causation shifts from the plaintiff and the defendant (Price Waterhouse v. Hopkins, (1989) 490 US 228). The plaintiff would have to prove that the defendant’s actions or omission were the injury’s cause. The defendant, in turn, has to demonstrate that their negligent actions were not the `but-for’ cause of the plaintiff’s injury (Univ. of Tex. Southwestern Med. v. Nassar, (2013) 133 S. Ct. 2517, Summers v. Tice, (1948) 33 Cal.2d.).
Impacts of Tort Law in the U.S.
Tort law has affected both the individual, business, and state organizations. This section will seek to look into the impacts of Tort law in various sectors of the USA. These include:
Impacts of Negligence on Professionals
Over the years, the law has developed to resolve conflict arising out of different fields and situations. Tort law, in particular, has developed different torts in various sectors of the economy and to multiple professionals. Like all other torts to be discussed, the tort of professionalism results from the expansion of Tort law to cater to civil wrongs and bring about social order (The Law of Torts p. 100). A professional owes a client a duty of care concerning all kinds of business that involve the profession. Therefore, he/she must exercise a reasonable degree of care, skill, and knowledge related to their practice (Philip Morris USA, Inc. v. Ledoux, (2017) 230 So. 3d 530). A notable impact of this and the increase of lawsuits against practitioners, especially lawyers, have been forced to take insurance covers against such matters. Premiums depend on the risk of loss and could range from very steep to meager sums.
One such class in the field of medicine is medical malpractice. Medical malpractice is an act or omission by a medical doctor during the treatment of a patient that departs from accepted standards of practice in the medical practice and causes an injury to the patient (White, E. Tort law in America: An intellectual history. (2003) Oxford University Press, USA.). It is the subset of tort that deals with professional negligence. In the U.S., such lawsuits are expected. Medical malpractice law in the United States comes from English common law and is a courts’ creature. To have a successful cause of action, the injured patient should prove that the physician acted negligently in rendering care and that such negligence resulted in injury. In occasional situations, usually concerning reckless conduct, a victim may also seek punitive compensation against an offender.
An important medical malpractice crisis in the United States occurred in the 1970s and 1980s (The Nature and Impact of Tort Reform). During this period, there was a quick growth in the amount of medical malpractice claims filed and the size of awards made in medical malpractice actions. The American Medical Association has estimated that in 1975 as many as 14,000 malpractice law suits were filed against medical doctors. The regular jury award in such cases was $171,000 (De Ville, K. Medical malpractice in the twentieth-century United States: the interaction of technology, law, and culture. (1998) Vol. 14(2) International journal of technology assessment in health care, p. 200) The incursion of medical malpractice claims and subsequent jury awards created a chain response with an extensive effect. It proved disadvantageous to insurance companies that covered said liability policies. A majority of private insurance corporations started withdrawing from providing insurance cover, and the insurers that continued responded by raising malpractice premiums. In 1975, it was documented that malpractice premiums had increased from anywhere from 100% to 750% (Ibid).
The rapid rise in insurance premiums, attached to the loss of many private insurance companies from the market, resulted in some physicians leaving particular practice areas. This called for serious policy considerations and changes. The peak of these factors sparked a call for policy modification at both the national and federal levels. From a Tort law point of view, the deterrence theory seems to have drastically affected medicine’s practice. In theory, malpractice liability’s deterrence effect is purposed to claim payments impose a direct financial sanction. These economic sanctions necessitate that physicians take insurance covers against malpractice (Mello, M., & Brennan, A. Deterrence of medical errors: theory and evidence for malpractice reform. (2001). Vol. 80, Tex. L., Rev., p. 1595). Due to considerable reforms, the awards rarely exceed coverage limits (Hyman, A. et al. Do defendants pay what juries award? Post-verdict haircuts in Texas medical malpractice cases, 1988–2003. (2007) Journal of Empirical Legal Studies, 4(1), p.55).
However, there are still instances where physicians may experience economic effects with a tentative increase in premiums. As a result of medicolegal track record adversely affects their clinical income (Mello, M. et al. Malpractice liability and health care quality: a review. (2020). Jama, 323(4), p. 358). These issues affect health care facilities as doctors spend a lot of money on premiums. This means that there is an increase in the cost of services. As a result, healthcare becomes expensive, and individuals incur considerable costs to get treatment.
Similarly, the medial practitioners, the tort of negligence, have developed to cater to instances where a professional fail to discharge his/her duties to his/her client resulting in a loss. It is argued that it is a failure to dispense services in line with the highest professional standards. For example, a lawyer is negligent in handling his/her client’s affairs by not doing a reasonably good job, resulting in a considerable loss on the client’s part. The clients can claim damages from the lawyer. Such a claim is for professional malpractice.
Negligence and the Introduction of Worker’s Compensation
The tort of negligence has played an essential role in the relationship between the employer and the employee. In many ways, it has affected employer and employee contracts. Notably, it has introduced new terms for this agreement. This has been through the introduction of liability on the employer’s part for the employee’s injury during employment. Initially, liability for tortious acts was placed on the party that had caused the damage. Such injuries were also limited to intentional and negligent actions of the tortfeasor. However, with the turn of the 20th Century, there was an increase in victim compensation and accident reduction (Gilles, G. As the System Currently Operates, Liability Is for Wrongdoers. Voluntary. (2006) Wash. & Lee L. Rev., 63, 603-606.). A result of this movement saw the enactment of workers’ compensation laws. Initially, it aimed to serve as a public insurance scheme to lower employers’ payments while making workers’ recovery of injuries sustained during their work. In truth, worker’s compensation was the development of Tort law (The Law of Torts p. 111).
The introduction of Workers Compensation was meant to cater to accidents during the worker’s employment while on duty. With the increase in industrialization and innovation, workers were exposed to job opportunities based on qualification and demand. In many industries dependent on human labor, some accidents led to worker’s injury. In most cases, these accidents occur within the working hours and their work station or while on duty. This would lead to a colossal number of suits being filed seeking compensation for their employers (Posner, R. 1972). Instead of having a bulk of cases filed in court seeking compensation for such injuries, the employer would set aside funds to be paid in case the worker suffered an injury during his/her employment (Henry, P. 1980)
Without the scheme, workers could only get compensation after proving their employers were negligent. It would seem a tad unfair when dealing with cases of long-term illness caused by work-related activities. An example of this is the case of industries that manufacture chemicals and chemical-derived products. As a result, enterprises take policies to ensure that they can compensate for their staff’s work-related injuries (Schwartz, T. Auto no-fault and first-party insurance: Advantages and problems. (1999) S. Cal. L. Rev., 73, 611.).
With this development, worker compensation has developed to be a vital part of a worker’s employment contract. It has reduced the need for the claimant to move to court. In the present day, Tort law plays an inadequate role in reimbursing for accidental injury. Dobbs alludes to the fact that the focus of tort law is on wrongdoing. It does not pay compensation where a tortfeasor has no insurance or no private assets to pay damages. It cannot pay compensation where the amount of loss is too small to be worth the cost of litigation (The Law of Torts pg. 100). The tort system has focused on claimants who bring claims before court and has left workers compensation to compensate for work-related injuries. At the time of writing this paper, the U.S. has a varied set of somewhat overlapping schemes. For instance, nearly all workplace injuries are covered completely by workers’ compensation, not tort.
Negligence and Vicarious Liability
Vicarious liability is where the employer is held liable for his/her employee’s actions provided such an act or omission occurred while under his/her duty. It is based on the doctrine of respondeat superior, where employers are held liable for their employees’ torts committed within the scope of employment. Although there is no fault on the employee, the doctrine imposes “strict liability” on the employer. He/she is liable even though the proprietor did nothing wrong.
The doctrine is commonly misunderstood to mean that liability only falls on the employer and not the employee. This would mean that the employee goes scots free while the employer blames his/her actions singularly. Although the employer is liable under respondent superior for the worker’s conduct, the employee remains mutually responsible for the injury caused. As stated by the American Law Institute states, ‘an agent is subject to liability to a third party injured by the agent’s tortious conduct’ (American Law Institute. Third Restatement of the law, torts (2006) Vol. 1, American Law Institute-American Bar Association). Where no applicable statute provides contrary to this, a person remains subject to liability, although he/she acts as an agent or an employee. This is the case in every American State that follows this same rule (Ibid). In such a suit, the employer and employee may be enjoined as defendants regarding their liability.
Where the issue of indemnification arises, it will depend on whether the worker or the employer is sued personally. When the employee has sued alone, the employee may seek restitution from the employer if the conduct was within the course and scope. If the employer sued alone, he/she could attempt to evade liability by claiming the employee’s conduct was outside of the content of the employee’s authority. In this instance, the employer cannot sue the employee to recover indemnification for the employee’s negligence but avoid liability and place it on the employee (Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555.).
Impacts on Product Manufacturing and Processing Industries
Industries, mainly manufacturers and processors, have been impacted by the tort of negligence. Enterprises are required to check on the products’ quality to ensure that the products are fit for consumption. Tort law has developed to create product liability. Product liability is where a manufacturer or retailer is held accountable for placing a substandard product into a consumer’s hands. A product defect that causes injury lies with all vendors of the work in the distribution chain. Product liability has its basis in the tort of negligence. It results from the development of the tort and is an offshoot of the tort (See, Keeton, P. Product Liability-Problems Pertaining to Proof of Negligence. (1965) Sw. L.J., 19, 26. and Sachs, R. Negligence or Strict Product Liability: Is There Really a Difference in Law or Economics. (1978) Ga. J. Int’l & Comp. L., 8, 259).
In the U.S., product liability law requires that the manufacturers, distributors, suppliers, retailers, and other persons avail products are held accountable for the damages caused by those products. For instance, where a customer, user, or passer-by suffers damage caused by a substandard or unreasonably unsafe merchandise, the producer or anyone else in the supply chain could be held liable for that damage (See, Becnel Jr, E. Becnel Jr, E. An overview of complex product liability litigation in the USA. (1998) International Journal of Fatigue, 20(2), p.93, Bifolck v. Philip Morris USA Inc., (2019) 936 F.3d 74). A common feature of such suits is that they tend to be costly and lengthy when brought by individual consumers. In most cases and where possible, such lawsuits are brought as class actions (Vandall, J. Economic and Causation Issues in City Suits against Gun Manufacturers. (1999) Pepp. L. Rev., 27, p.722).
In the long run, product liability has negatively impacted manufacturers. Such suits are harmful for the publicity of the companies affected. As per Reimann, M., “In the US., product liability continues to play a immense part: lawsuits are much more recurrent there than anywhere else in the world, awards are higher, and publicity is significant” (Reimann, M. “Product liability.” In Bussani, Mauro; Sebok, Anthony J. (eds.). (2015). Comparative Tort Law: Global Perspectives. Cheltenham: Edward Elgar Publishing. p. 25). It has seemed to open the flood gates of litigation against retailers and manufacturers. These suits revolve around strict liability negligence and consumer protection with the defendant liable for; manufacturing defects, design defects, or failing to inform the claimant of deficiencies (American Law Institute. Third Restatement of the law, torts (2006) Vol. 1, American Law Institute-American Bar Association §2).
References
American Law Institute. Restatement of the law, agency: as adopted and promulgated by the American Law Institute at Philadelphia, Pennsylvania, May 17, 2005 (2006) Vol. 1. American Law Institute-American Bar Association (ALI-ABA).
American Law Institute. Third Restatement of the law, torts (2006) Vol. 1, American Law Institute-American Bar Association (ALI-ABA).
Becnel Jr, E. An overview of complex product liability litigation in the USA. (1998) International Journal of Fatigue, 20(2), 93-98.
Calabresi, G., The Costs of Accidents: A Legal and Economic Analysis, (1970) Yale University Press
De Ville, K. Medical malpractice in the twentieth-century United States: the interaction of technology, law, and culture. (1998) International journal of technology assessment in health care, 14(2), p. 196-211.
Dobbs, B. The Law of Torts, (2000) West Group, S.T. Paul, Minn.
Donnelly, J. The Fault Principle: A Sketch of its Development in Tort Law During the Nineteenth Century. (1966) Syracuse L. Rev., 18, 728.
Feigenson, R. Can tort juries punish competently? (2003) 78 Chi.-Kent L. Rev. 239 Retrieved on from https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss1/9
Galligan Jr, C. Deterrence: The Legitimate Function of the Public Tort. (2001) Wash. & Lee L. Rev., 58, 1019. Retrieved from https://scholarlycommons.law.wlu.edu/wlulr/vol58/iss3/6
Gerhart, M. Tort law and social morality. (2010) Cambridge University Press.
Gilles, G. As the System Currently Operates, Liability Is for Wrongdoers. Voluntary. (2006) Wash. & Lee L. Rev., 63, 603-606.
Henry, P. The Exclusive Liability Provision in Workmen’s Compensation: An Overly Harsh Penalty for Third Parties or a Necessary Shield for Negligent Employers. (1980) Idaho L. Rev., 17, 583.
Hubbard, P. The Nature and Impact of the Tort Reform Movement. (2006) Hofstra L. Rev., 35, 437.
Hyman, A. et al. Do defendants pay what juries award? Post-verdict haircuts in Texas medical malpractice cases, 1988–2003. (2007) Journal of Empirical Legal Studies, 4(1), 3-68.
Jain, S. On the efficiency of the negligence rule. (2010) Journal of Economic Policy Reform, 13(4), Pg. 343-359.
Keeton, P. Product Liability-Problems Pertaining to Proof of Negligence. (1965) Sw. L.J., 19, 26.
Madden, S. (Ed.). Exploring tort law. (2005)Cambridge University Press.
Mello, M. et al. Malpractice liability and health care quality: a review. (2020). Jama, 323(4), 352-366.
Mello, M., & Brennan, A. Deterrence of medical errors: theory and evidence for malpractice reform. (2001). Tex. L., Rev., 80, 1595.
Owen, D. (Ed.) “Right, Justice, and Tort Law,” in Philosophical Foundations of Tort Law (1995). Clarendon Press.
Posner, R. A theory of negligence. (1972). The Journal of Legal Studies, 1(1), 29-96.
Prosser, L. Handbook of the Law of Torts (1941) Vol. 4. West Publishing.
Reimann, M. “Product liability.” In Bussani, Mauro; Sebok, Anthony J. (eds.). (2015). Comparative Tort Law: Global Perspectives. Cheltenham: Edward Elgar Publishing. pp. 250–278
Sachs, R. Negligence or Strict Product Liability: Is There Really a Difference in Law or Economics. (1978) Ga. J. Int’l & Comp. L., 8, 259.
Schwartz, T. Auto no-fault and first-party insurance: Advantages and problems. (1999) S. Cal. L. Rev., 73, 611.
Splane, I. Tort Liability of the Mentally Ill in Negligence Actions. (1983). The Yale Law Journal, 93(1), 153-170.
Stephenson, G. (Ed.). Sourcebook on Tort Law 2/e. (2000). Cavendish Publishing.
Vandall, J. Economic and Causation Issues in City Suits against Gun Manufacturers. (1999) Pepp. L. Rev., 27, 719.
White, E. Tort law in America: An intellectual history. (2003) Oxford University Press, USA.
Winfield, H. Duty in Tortious Negligence. (1934) Columbia Law Review, 34(1), p.41-66.
Wright, R. Causation in tort law. (1985) Calif. L. Rev., 73, 1735.
Bifolck v. Philip Morris USA Inc., (2019) 936 F.3d 74
Biakanja v. Irving (1958) 320 P.2d 16
BMW of N. Am., Inc. v. Gore, (1996) 517 U.S. 559, 577, 582.
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., (2001) 532 U.S. 424, 438-39.
Donoghue v Stevenson [1932] AC 562.
Cork v Kirby Maclean, Ltd [1957] 2 ALL ER 402.
Price Waterhouse v. Hopkins, (1989) 490 US 228
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555.
Philip Morris USA, Inc. v. Ledoux, (2017) 230 So. 3d 530
Rummel v. Estelle, (1980) 445 U.S. 263, 284
Department of Environmental Protection v. Ventron Corp. (1983) 94 N.J. 473
Univ. of Tex. Southwestern Med. v. Nassar, (2013) 133 S. Ct. 2517
Summers v. Tice, (1948) 33 Cal.2d.
Rylands v Fletcher, (1868) LR 3 HL 330
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