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Free «A Tort Law» Essay Sample

Introduction

A tort is a civil wrong. Tort law is branch of law that tries to give remedies to the civil wrongs not arising from contractual obligation (Johnston and Markesinis, 2008). It defines what it constitutes a legal injury and establishes circumstances under which one person may be held liable for other persons’ injury

Tort law can be divided into intentional tort and negligent tort.

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Intentional tort

This is a type of tort that describes a civil wrong arising from an intentional act from the defendant. One of the major characteristic of intentional tort is that the plaintiff must prove the additional element  that the defendant acted with specific intent or mental state of performing the act which later turns out to be the direct cause of the plaintiff’s injury.

In our case, several intentional torts were committed. They include the following:

The son’s behavior of yelling to his girl friends’ father that he would run over him if he did not get out of the way is an intentional tort. This in common law qualifies to be assault. Assault is the tort of acting intentionally and voluntary causing the reasonable apprehension of an immediate harm or offensive contact.  One is expected to act in a manner that will not inflict fear or apprehension to others. The defenses the son can give is that of necessity (Johnston and Markesinis, 2008).

Another intentional tort that the son committed was the attempt to run over the girlfriend’s father. Though the father escaped unhurt, the act in itself qualifies to be battery. In common law, battery involves bringing about unconsented harm. It is clear that the girlfriend’s father would have been hurt were it not that he was quick enough to jump out of the drive way.

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Another intentional tort that was committed is the son holding the girlfriend’s little brother captive for several miles before letting him out of the car to walk home. The son therefore committed a tort of trespass to persons. Trespass to persons occurs when one intrudes the affairs of others without their consent. In this case the son drove a long way before he left free the little boy to walk back home. The little boy had expressed his will to get out of the car but the son defiantly drove away, harbored by some latent hostility towards him. The defense that the son can cite is that of consent; the little boy was there voluntarily.

The lovers drove to a far place to enjoy privacy in a certain remote area. They entered a certain private land. Though the lovers may not have known or thought of any tort, they committed one of trespass to property (land) by entering without a lawful excuse. The defense that the lovers would have cited is that necessity for privacy and the place offered a conducive environment for that.

Another intentional tort is evidenced by the man who found the two lovers as they were confessing their love to each other. It is said that the man punctuated each demand to get off his land by firing a shot in the air. This action to frighten the lovers is assault committed by the land owner. However the man would cite defense of property as his defense in a court of law.

An intentional tort was also committed when the son, as he was driving out of the land, took aim at the sign on the man’s property and obliterated it with the car.

This behavior in a legal case will not stand because the son is expected to drive carefully and avoid any damage to the properties of the land owner.  However the son would have cited assault and duress as defense which impaired his judgement for control of the car. This also extends further because it leads to a tort of negligence that will be discussed latter.

 
 
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Another intentional tort was committed by the son as he was driving out of the private land. It is said that he fired some few shot to the man’s direction with a gun that he had borrowed from the father. This act of shooting to the man’s direction qualifies to be assault. The defense the son would have given is that of self defense.

Negligent tort

Negligent tort occurs when one person’s acts of omission or commission leads to injury of another person. For negligence to appear, some critical elements must be cited. These elements include the duty of care, breach of the duty of care, prove a proximate cause and prove the harm. The level of care expected is that of a reasonable person.

In our case, some negligent torts were committed. One of them is evidenced by the son driving very fast on his way home, and he had to swerve to avoid a boy on a bicycle. It is reported the boy lost control and hit a tree. Had the son drove with a speed expected from, any person of reasonable capacity, he would have been able to see the boy and take measures. In this case the boy’s accident would not have occurred. It is expected that the son should behave like a competent driver. The son’s negligence also made a pedestrian to be hit by a vehicle as he rushed to save the boy. The defense that the son would have given is contributory negligence.i.e the boy was not careful as he was riding.

Another negligence tort was also created by the nurse who is reported to be inexperienced. This is termed as medical negligence. It is expected that the standard test of breach is whether the defendant has matched the abilities of a reasonable person by virtue of the services they offer. Like in the case Hurks vs. Cole the nurse should be held responsible (Garfield and Earl, 1999). It is a common rule that professional people must hold themselves as having more than average abilities.

The defenses that the nurse can give would include: cite that the harm or damage was unavoidable known risk that occurs without negligence; cite that the patient failed to disclose important information to the doctor; the patient’s condition was not worsened by the alleged negligence (Garfield and Earl, 1999).

   

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