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Free «Tort of Negligence and the Case on Mrs. Todd» Essay Sample


In tort law, negligence refers to a case where one fails to use regular care by acting in an abnormal way or by omission. As such, negligence may result when either a person fails to exercise extreme care where another careful person could or if an individual does something that a really careful person could not have done.  “Negligence is often claimed in personal injury lawsuits. For example, a personal injury lawsuit arising out of an automobile accident case or premises liability action is frequently based on the theory that the defendant was negligent,” (Larson, 2003). However it is worth noting that tort of negligence applies differently in different jurisdiction depending on the law that binds in that given jurisdiction. This essay develops legal framework of tort of negligence with special reference to the case of Mrs. Todd who is a claimant and Alan; an employee of Fresco Supermarkets who is in this case a defendant.

In the case mentioned above, there are number of resultant effects that may arise. The first is Proximate Cause; which occurs when a plaintiff is hurt due to negligent behavior or demeanor. In addition, it applies when injury caused to a plaintiff resulted due to natural causes or due to act of negligence on the part of the defendant. In this case, I defendant may be charged depending on the plaintiff’s ability to prove both negligence and proximate cause. However, Larson, (2003) notes that, “Please note that the law speaks of the defendant's conduct as being "a proximate cause" of an accident, as opposed to "the proximate cause". Many accidents have more than one proximate cause.” Negligence of the defendant is not always what causes injury is an act of proximate cause of harm or the ultimate proximate cause. In the case of Alan, an employee at Fresco Supermarkets, his actions cause multiple injuries. That caused to Mrs. Todd, injury of Brian due to falling debris, and Mrs. Todd’s husband who collapsed and later dies after witnessing the accident involving his wife. This is a combination of accidents that resulted due to defendant’s action and liability applies to all the caused injuries.



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On the other hand, it is possible for a plaintiff claim injury liability from multiple defendants as long as he/she can prove all the defendants are solely responsible for proximate causes of injury to a plaintiff. This is possible so long as injuries caused to a plaintiff are valid and regardless of how dissimilar defendants’ cases may be. 

Components of Negligence Acts

In order for a plaintiff to prove negligence on the side of a defendant, there is a conventional formula that is used in evaluating ‘preponderance of evidence’ in which a number of issues are taken into consideration. To begin with, a defendant should be obliged to help a plaintiff. In Mrs. Todd’s case, she had shopped some fresh produce from Fresco Supermarket and it was the responsibility of attendants to aid her load her luggage into the scooter. Alan is a supervisor and his help comes as a personal conviction to help, not a responsibility. Therefore, the defendant is not obliged to help in this case. The second factor is for a plaintiff to prove that a defendant has violated norms of his/her duty. As a result of duty negligence, a plaintiff suffers injury. Finally, a plaintiff should prove that resulting accident could have been foreseen by a defendant. Larson, (2003) illustrates that;

For example, a person driving a car has a general duty to conduct the car in a safe and responsible manner. If a driver runs through a red light, the driver violates that duty. As it is foreseeable that running a red light can result in a car crash, and that people are likely to be injured in such a collision, the driver will be liable in negligence for any injuries that in fact result to others in a collision resulting from the running of the red light.

Mrs. Todd’s case also presents a Vicarious Liability. Vicarious liability is typical in business law where employer is held responsible for negligent acts of his/her employees as long as such offences are caused in the line of duty. The series of accidents resulting from Alan’s action take place when he was working. In a case of vicarious liability, an employer bears the consequences of negligence acts of an employee.

In establishing a case of tort of negligence, two key issues should be addressed: whether or not a plaintiff needed help of a defendant and in doing so, did a defendant breach any law? Duty of care is a concept that was developed to provide analysis of how a defendant may be liable to a case. Also, according to University of London External Programme, (2010, p. 18), “The second purpose is one of limitation, setting the boundaries within which one person could be liable to another for the consequences of careless behavior.” The neighbor principle is an old test used to establish liability of a defendant. The principle states that if a defendant’s action directly affects a plaintiff, then there is duty. Apart from Proximate cause and neighbor’s principle, other tests that can be used by a claimant to charge a defendant include: revised and alternative tests.

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The scope of duty of care is to seek redress on whether a defendant’s duty of care is responsible for injury of plaintiff. An example of a case to this effect according to University of London, (2010, p. 22) is the “Mulcahy v Ministry of Defense [1996] QB 732 (liability of injuries to soldiers on active service; Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607 (liability of rugby referee to injured player).” After establishing duty of care, the next responsibility of a plaintiff is to find out if there was breach of duty. In summary, “There is no liability in negligence unless there is a duty to take care. This establishes the necessary link between the claimant and the defendant,” (University of London External Programme, 2010, p. 23).

Breach of duty seeks to preempt or prove that a defendant’s action may have been an act of negligence. Breach of duty has raised heated debate between lawyers of a defendant and plaintiff in trying to reach a consensus. However such arguments must take place within a legal frame work and this calls for advisers and lawyers of both a plaintiff and a defendant to explain grounds under which negligent act could be considered. The basic rule of breach of duty states that a defendant ought to conform to the guidelines that stipulate intended care to a reasonable personality in any circumstance. Apart from basic rule, breach of contract can be established by act of an ordinary person in ordinary conditions; but the most difficult case in establishing breach of duty in the case of a skilled or qualified defendant. With reference to Alan in Mrs. Todd’s case, it would be difficult to establish if an ordinary person could place anything on the accelerator of the scoot which made the scoot speed off leading to the multiple accidents.

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In proving breach of duty, plaintiff is normally not in a position to know what events took place after an accident. Mrs. Todd was flung from the scooter into a pile of cigarette boxes and this incident only left out her protruding legs. All her body was amassed in the cigarette piles. In that condition, she cannot know what took place since at the same time she is still in shock and total confusion. Her testimony in to charge Alan for her ordeal could be misleading. However, what can be proved is an act of negligence via the use legal framework like res ipsa loquitur, which literally mean the facts are valid. A claimant on deciding this law of evidence should know the appropriate and legal implications of using the maxim in his/her favor or the consequences of invoking it. This situation is relevant to the case of “Scott v London & St. Katharine’s Dock (1865) 3 H. & C. 596; Henderson v Henry E. Jenkins [1970] AC 282; Ng Chun v Lee Chuen Tat [1988] RFR 298,” (University of London External Programme, 2010, p. 27).

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Res ipsa loquitur is applicable only in a number of situations and this call for absolute keenness on the part of a plaintiff. You should not make use of it in answering questions unless there is a clear suggestion that there is no explanation for what has happened and the only inference is that the defendant must have been negligent,” (University of London External Programme, 2010, pp. 27-28). In a nut shell, breach of duty involves making a justifiable comparison of a defendant’s state with that of another in regard to how the third party would have reacted to a similar situation. If professionalism is involved, comparison ought to be made with a similar professional; for instance, Alan’s tort of negligence should be compared to how a scoot driver could have reacted (Mrs. Todd is a scoot driver). The deciding factor; though, will be application of standard of care. “The standard of care defines what conduct will count in law as negligence or lack of care, and in this sense it defines the ‘content’ of the tort,” (Steele, 2007, p. 110).

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Defenses to Negligence Cases

In any tort of negligence case, there are three defenses that can be applied: Ex turpi causa, Volenti non fit injuria and Contributory negligence. Volenti non fit injuria means that a plaintiff has decided to willingly seek for legal justice, risk of injury notwithstanding. According to Currier and Eimermann, (2009, p. 159). “The defense tries to show that no duty was owed to the plaintiff and the defendant’s action was the cause of the plaintiff’s injuries.” In case of ex turpi causa, despite a bad action there is no injury caused to a plaintiff. All the two defense cases mentioned so far may be irrelevant to Mrs. Todd’s situation. However, contributory negligence is more appropriate. According to Harpwood, (2003, p. 413), “The defense of contributory negligence operates to apportion the damages, so reducing damages payable to claimants if it can be proved that they contributed in some way to damage suffered by failing to take sufficient care for their own safety.”

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Conclusion and Recommendation for Legal Actions

Voracious liability notwithstanding, Alan case can be determined in Alan’s favor. Alan may be ruled innocent as long as there is contributory negligence on the part of Mrs. Todd. Alan’s lawyer needs to establish that Mrs. Todd did not take proper care of her mobility scoot in her encounter with Alan. “The defendant must prove, first, that the claimant did not take ordinary care for himself and, secondly, that this was a contributory cause of the damage suffered,” (Harpwood, 2003, p. 414). Alan could have been ignorant about the repercussions of putting the bag of vegetable on the scoot’s accelerator control handlebars. Suppose Mrs. Todd was keen enough to note this action and raise alarm to Alan on the consequences of his action, the accident could have been avoided. This is similar to “Brennan v Airtours plc (1999) The Times, 1 February, the claimant was found to be 50% to blame for injuries which he incurred…,” (Harpwood, 2003, p. 414).

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Alan is a supervisor and not grocery attendant charged with duty of loading customers’ stuffs in their automobiles. Therefore, this is a case of ordinary person acting in an ordinary condition. Employment act should apply in regard to who bears loss damage of property. Alan’s employer should be liable for loss because the accident occurred in line of duty considering voracious liability and employment legal frameworks.


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