Negligent_Torts

Negligent Tort James Nelson Bus670 Legal Environment Dr. Bob Miller, PHD September 20, 2010 Negligent Torts Negligence law was created by the Courts due to the enormous amount of injuries that happened during the 19th century in America. Although the law initially was not very favorable to injured plaintiffs, the reason was very clear. If the infant industries of the Industrial revolution were held responsible for all the harms they caused, the country’s industrial development would have been seriously restricted. (Mallor, et. al., 2010) This writing will investigate the negligent tort, and analyze the concepts of but for and proximate causation, duty of care and the various remedies available for tort liabilities that are found. To compare situations from a different country, in the UK originally, a claim of negligence could be brought within six years of the date of breach. Then, the Latent Damage Act of 1986 changed the tort claims to either within six years of the date of damage, or within three years of the date of knowledge. Even if both or one of these periods was still running, the claim would be barred once 15 years had elapsed from the date of the defendant’s breach of duty. (Murdoch, 2006) Obviously, this breach of duty can be associated with or compared to duty of care in America. In a case claiming negligence, the Appellate Court of Appeals in the UK held that the appellants had the necessary knowledge, that valuable rights had been lost, and that although their land lords might not have realized this or might have decided not to rely upon the point, the chances of either of these things happening were not good. Ultimately, the decision was made not on whether or not negligence had taken place, but on whether or not the appellants knew that negligence had taken place. In an article from 2006, the but for causation concept is present. (Murdoch, 2006) IEI is defined as Idiopathic environmental intolerance, and this means unknown origin environmental intolerance. Thus, the newest term for the concepts of multiple chemical sensitivity, (MCS) sick building syndrome, environmental illness, etc. But for causation is the very fact that there is an unknown cause of illness or harm, and no one can say definitely, what it is or isn’t. This scenario is indicative of negligence, and but for causation. Ultimately the author list claims of this nature as sometimes psychosomatic disorders or IEI. The result is, “sometimes we just don’t know why people get sick. Usually, it is not until people get sick that we realize just how important good health really is. In a non-related case involving the use of an asthmatic spray device that was expected to gain FDA approval, then, the manufacturer announced that the FDA would not approve the device, the concept of proximate causation was mentioned by the court. The Court’s statement is a reaffirmation of the principle that recovery may not be had in actions for losses, or portions of losses, attributable to factors other than the alleged misrepresentations or omissions. In its final conclusion, the Court stated, “other things being equal, the longer the time between purchase and sale, the more likely that this is so, i.e., the more likely that other factors caused the loss.” (Savino, 2005) Proximate causation involves the blame for certain seemingly negligent situations or circumstances on other factors, rather than the ones initially mentioned in the complaint by the Plaintiff. The question arises, in all these cases, is there duty of care' Well, let us examine duty of care and see if it is a blanket concept. Duty of reasonable care is the first element in a negligence claim, and in the text, (Mallor, et. al., 2010) negligence law contemplates that each person must act as a reasonable person of ordinary prudence would have acted under the same or similar circumstances. This standard for assessing conduct is often called the reasonable person test, or the reasonable care standard. Another case scenario is given involving a nurse who prescribes ibuprofen and dispensed it from the stock already in the department. The patient returns two days later and complains that the tablets made her intensely nauseous, and her vomiting was so severe that she lost her dentures down the toilet. She (the patient) argues that she would have never taken the tablets if she had known the side effects of the medicine and makes a claim for her lost dentures. (Graham, 2009) The article does not say what the outcome was, or what the court decided. However, the article did say that there was a trend by the court to protect the healthcare professionals. In addition, the article states that the protection by the court does not give practitioners carte blanche to do as they wish. Consequently, the decision rests with the specific circumstances surrounding the facts that are evident. This was another case from the UK, comparing the laws in our parent country with the laws of the United States. In cases where the defendant has been found guilty of negligence and the plaintiff has been awarded rewards, there are circumstances that are considered remedies for having been found guilty of negligent torts. These remedies will follow. The remedies for having been found guilty of negligent torts are few, but powerful. These remedies have been called tort reform. According to the text, by 1990 most states have formed or enacted some form of tort reform legislation. These enactments are limiting defendants’ tort liability (plaintiffs’ ability to obtain a judgment) and limiting the damages plaintiffs can recover once they get a judgment. In recent years there have been calls in some quarters for Congress to enact caps on dollar amounts of damages for pain and suffering and similar noneconomic harm in certain negligence cases, most notably those involving alleged medical malpractice. In other scenarios involving businesses, a person called a Risk manager represents the business and in some instances the community. This person deals with issues that will help promote the business in the community and helps to identify issues that affect the business and the community as well. The business affects the community it operates in and it impacts the community as well. The tort system has fostered excessive litigation that has retarded business growth and product development. Consumers have also been harmed because they ultimately bear the costs of coping with such a system through higher product and service costs. Risk managers can advance the need to establish national guidelines on the awarding of punitive damages and the elimination of joint liability for noneconomic damages. They can show establishing more severe sanctions for frivolous lawsuits will help to create a better climate for business and consumers and the advantages of limiting attorneys’ fees. In total, negligent torts are not helpful to anything or anyone. Individuals get convicted on the standard of proof satisfaction of the preponderance of the evidence standard, and some defendants with particularly bad behavior will recover punitive damages. These damages are not intended to compensate the victims for their losses, but to punish flagrant wrongdoers and to deer them, as well as others, from engaging in similar conduct in the future. In short, everybody loses, businesses, individuals, and the community as a whole. The but for and proximate causation, duty of care and the various types of remedies for a finding of tort liability have all been explained and shown to be very helpful in dealing with negligent torts. These elements are not to be taken lightly. Even though at first the courts kept the condition of the country’s welfare in mind, now, the courts usually remind everyone that committing negligent torts is not a good idea. Crime does not pay you, it pays everybody else. References Mallor, J. P., Barnes, A. J., bowers, T., & Langvardt, A. W. (2010). Business Law: The Ethical, global, and e-commerce environment. Boston: McGraw-Hill Irwin. Murdoch, J. Legal Notes. Retrieved from ProQuest Direct database September 20, 2010. Markiewicz, D. (2006). At your wits end (part 2) ISHN, 40 (6), 21-22. Savino, A. G. (2005) Dura pharmaceuticals: Defendants win on loss. Risk management. Retrieved from ProQuest Direct database September 20, 2010. Graham, A. (2009) Negligence: A prescribing dilemma. Practice Nurse. Retrieved from ProQuest Direct database September 20, 2010. Vaughan, P. C. (1996) Risk managers: Creating public policy and influencing legislation. [Electronic version] Risk Management. New York: 43 (6) 17-22.