Tort Law Essay Example

A tort is the injury of a person or a person's property that is remedied by a civil lawsuit for monetary damages. Intentional torts are actions that are done on purpose or “with intent”. Negligence is when an injury occurs with lack of intent. Those that are negligent can still be held liable for monetary damages, even though they did not commit the injury on purpose.

Battery is defined as making physical contact with another person. The intentional tort of battery is determined as “intentional infliction of harmful or offensive contact”. For a case to be considered intentional battery, you must have intent to bring contact, but not harm and consent. It is inconsequential if you have no intent to harm the person, as long as you had the intention of your body making contact with theirs, you can be charged with battery. For example, a boyfriend and girlfriend, Maria and John, are arguing because Maria found out John cheated on her. Maria intended to punch John in the chest but he leaned down and she ended up punching him in the face. As a result, she knocks out some of his teeth. Immediately after, Maria apologizes for hurting him as that was not her intention. Maria can be charged with the intentional tort of battery because she made physical contact with John and intended to punch him, but not harm him. Maria is now also liable for the damages, such as John’s dental bill to get new teeth and his loss of wages.

The tort of assault is “ the intentional infliction of imminent apprehension of harmful or offensive contact”. Unlike battery, there is no physical contact involved with assault; instead we “touch the mind”. Simply, assault is making someone believe that you are going to make harmful or offensive contact. Although there is no physical contact, it is your right to “live without being put in fear of personal harm”. For example, two people, Mike and Jake, are standing facing each other and Mike is holding a baseball bat. He tells Jake that he is going to “knock him out with the bat”. As of right now, Mike cannot be charged with assault because these are “mere words”. Mike then starts swinging the bat in his hand and takes a step closer to Jake. Jake can now file a civil lawsuit against Mike for assault because Jake was put in fear of personal harm and Mike performed an overt act (the swinging of the bat in his hands and walking towards Jake). There was no physical contact in this scenario to consider it battery, but there was the “touching of the mind” and being put in fear of personal harm.

Unlike intentional torts, when someone is negligent they do not commit the injury on purpose. In order to be charged with negligence, the plaintiff must prove all five elements of negligence to win the claim. If a singular element cannot be proven, then the claim of negligence cannot stand. The first element of negligence is duty of care; when the defendant acts in a reasonable manner or uses reasonable care when engaging in conduct. The term reasonable varies per situation, as there is no single standard to be “reasonable”. The defendant's conduct is judged by the objective Reasonable Person Test. This is when a hypothetical person is judged on how they would act, given the circumstances. The second element is the breach of duty; a violation of duty of care. Did the defendant act in an unreasonable manner? This question is determined through the balancing test, which determines the defendant's cost to prevent the harm versus the gravity and probability of injury to the plaintiff. It compares what would happen if the defendant were to follow the law against the severity and likelihood of the injuries sustained to the plaintiff. The third element of negligence is the cause in fact; the ‘but for’ cause in the injury. This means that ‘but for’ the defendant's conduct or actions, the plaintiff's injury would not have taken place. The fourth element of negligence is the proximate cause. This means that the injury the plaintiff sustained must be reasonably foreseeable, based on the conduct of the defendant. If the injury is too bizarre, then the defendant cannot be held liable. The injury must be likely or probable, not just possible. With this element, we must determine what is foreseeable once we have established that there was a duty of care and that the defendant has breached it. Lastly, the fifth element is injury. Simply,  the plaintiff must show that they have suffered harm or injury.

A healthy student moves into a college dorm. After a few months, the student begins to develop symptoms associated with being exposed to black mold. She informs the university, they test the air vent in her room and there is indeed black mold that has been growing for a year and they offer her to move to a different room. It is revealed that there have been other complaints but the university has not done anything. As a result of this exposure she now has chronic fatigue and headaches. Can she sue the university for negligence? The first element is met because the university did not act in a reasonable manner. A reasonable university would have called a mold removal company after the first complaint in order to not harm other students. The second element is also met because the university acted in an unreasonable manner. The cost of getting rid of the mold early would have been much lower than the number of people getting sick and how bad their symptoms are. The third element is also met, but for the university’s lack of action to get rid of the black mold, the student would not be suffering from chronic fatigue and headaches. The fourth element is then met because the injury the plaintiff sustained is reasonably foreseeable. Chronic headaches and fatigue are associated symptoms of exposure to black mold. Lastly, the fifth element is also met because the plaintiff now struggles from chronic fatigue and headaches that cannot be managed without medication. The university can be held liable and should compensate all students that were affected by the black mold.

There are three defenses to negligence, contributory negligence, comparative negligence, and assumption of the risk. Contributory negligence is when the defendant claims that the plaintiff was also negligent in the case. If this is proven to be true then the plaintiff does not recover anything. For example, you are riding your skateboard down the street and trip over a pothole and crack your head open. You then sue the city for negligence, however you were not wearing a helmet when riding the skateboard. So, the defendant claims you were also negligent because if you were wearing a helmet then you may not have cracked open your head. The defendant was negligent because they did not take care of this pothole and the plaintiff was guilty for not wearing proper equipment when riding his skateboard. Since both are negligent the plaintiff will not recover any damages that you sued the defendant for.

Comparative negligence is when the damages are divided between the plaintiff and defendant based on their percentage of fault. The liabilities are apportioned and the amount the plaintiff recovers is lessened. Based on the percentage of how much each party is negligent, that is how the damages will be divided. For example, a pedestrian is crossing the street on a red light and a bicyclist was riding his bike and was using his phone and crashed into the pedestrian who ended up breaking their arm. The hospital bills for the pedestrian were $50,000 and the pedestrian sues the bicyclist for the damages. However, both parties were not following the law and were negligent in their actions so the damages will be divided accordingly. The plaintiff will be responsible for 70% of damages while the defendant is responsible for 30%. The defendant will only end up having to pay the plaintiff $15,000 and the plaintiff will be responsible for the other $45,000. 

The last defense to negligence is the assumption of risk. This is when the defendant is not liable if choose to participate in a dangerous activity. This can be expressed such as, signing a waiver or it can be implied. An example would be if you and your friends decide to go bungee jumping, however, prior to getting in the gear you have to sign a waiver that denies the establishment any liability if you get injured. In the case that the cord breaks as you jump, and you sustain life threatening injuries you cannot sue the establishment for any damages because of the waiver you signed.

Torts allow people a certain set of rights and if a person intrudes on those rights you are titled to civilly charge them for monetary damages. It does not matter if the defendant committed the action intentionally or unintentionally, the plaintiff is still subject to monetary recovery given the court rules in their favor.