example tort law essay

Tort Law Essays

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Tort Law: Negligence and Liability Essay

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The Webster dictionary defines tort as an action which causes harm to other people (Fleming, 1992). It can also be termed as a civil wrong caused when individuals indulge themselves in unreasonable actions. Tort claims are based on the belief that people should always take responsibility of their actions, especially, when such actions cause injuries to other people.

The tort laws are divided into two categories which are known as intentional and negligent torts. Just as the name suggests, intentional torts are actions imposed on specific kinds of offences committed with the offender’s full knowledge of the expected outcome.

This kind of tort is proven if a person commits it with very clear knowledge of the outcome of the actions (Hill, 1991). Examples of two common types of intentional torts include assault which is an intentional attempt to hurt a person by inflicting fear and battery which are the acts of hurting a person physically.

On the other hand, tort of negligence refers to all the actions that violate the expected standards of duty and care without intentions of doing so. A claimant is required to prove four main elements when reporting negligence tort. One is supposed to prove on the duty to protect the actual injury, breach of duty and the proximate cause (Mallor, 2010).

Every individual in the society is required by law to take responsibility of caring for all the people, hence every person is liable to duty to protect.

This, therefore, means that people are required by the law to do things perfectly, always avoiding all the forms of negligence and recklessness that can cause harm to other members of the society. For instance, all the doctors are entrusted with the responsibility of taking care of their patients by prescribing appropriate medications as well as providing them with the right treatment (Stein, 2002).

An individual is liable to breach of duty in instances where one fails to exercise reasonable standards of care when attending to other people. This can happen intentionally or unintentionally through exposing other people to dangerous situations which pose threats and consequently result to some sort of damages (Fleming, 1992). This concept can be imposed implicitly or expressly.

For instance, if individuals enter into a given contract, the terms and conditions of the contract are likely to impose certain duties and rights on all the contract parties. In cases where one party fails to honor the terms and conditions of the contract, it is liable to breach of duty to the other ones (Peck, 1990).

The law, however, expects individuals engaged in particular relationships, such as family relationships, to take the duty of responsibility. For instance, the law places high standards of care on parents with the responsibility of taking care of their children, hence a stranger may never be liable breach of duty as a result of child neglect.

Actual injury element is based on the principle highlighted by the fact that breach of duty eventually causes injury or loss to the affected individuals. Therefore, when imposing neglect tort, the claimant must always produce evidence of injury since lack of the evidence justifies the defendants against committing any form of tort. Damage of property and emotional stress are addressed under this element of negligent tort (Stein,2002).

Lastly, the factual or legal causation which is also known as the proximate cause states that there is a link between injuries resulted and breach of duty. If there is no link between the two, this element states that no monetary compensation is awarded to the complainant. Sometimes, the defendant may have legal causation or no factual causation for injury caused.

Fleming, J.G. (1992). The law of torts. Washington, DC: Law Book Co.

Hill, T.F.(1991). A Lost Chance for Compensation in the Tort of Negligence by the House of Lords. The Modern Law Review , 54, 511-523.

Mallor, J.B., Barnes, A.L.,Bowers, T. K.,& Langvardt, A. M. (2010). Business law: The ethical, global and e-commerce environment. ( 14th ed.). New York: McGraw Hill/Irwin.

Peck, C.J. (1990). Negligence and Liability Without Fault in Tort Law. Wash. L. Rev, 46 (62), 225-236.

Stein, M.A. (2002). Priestley v. Fowler (1837) and the emerging tort of negligence. BCL Rev , 44, 698-790.

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IvyPanda. (2019, May 15). Tort Law: Negligence and Liability. https://ivypanda.com/essays/negligent-tort-essay/

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Tort Law Essays

Under what circumstances is it desirable for the court to impose punitive damages? Do you think it would be correct to impose punitive damages on BP for the Deepwater Horizon oil-spill?

Should courts ever award exemplary damages and why? Should the benefit of such awards accrue to the benefit of the claimant suffering this wrong?

Psychiatric Injury

Psychiatric injury is equally serious as physical injury. Therefore, the duties of care owed in respect of psychiatric injury should be the same as those owed in respect of physical injury. Discuss.

Should there be special tests of causation to deal with injustices?

Breach of Duty

The law on breach of duty in negligence can be reduced to a simple principle: the defendant will be said to have breached its duty of care where the expected benefits of taking a precaution outweigh the costs of doing so. Discuss.

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• Example 2 (Negligence)

Legal problem solving: Example 2 (Negligence)

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Home — Essay Samples — Law, Crime & Punishment — Tort Law — Tort of Negligence in Business Law

Tort of Negligence in Business Law

• Categories: Business Law Tort Law

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Words: 2644 |

14 min read

Published: Sep 19, 2019

Words: 2644 | Pages: 6 | 14 min read

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Good Essay Example 1 (July 2017 Torts)

This lesson presents a real, good response to the July 2017 MEE Torts question . First, read the essay, then listen to the analysis below.

Download the essay as a PDF.

Good Essay 1

Directed verdict

1.   Fireworks display is an abnormally dangerous activity

The judge was incorrect, and running fireworks displays is an abnormally dangerous activity. The key issue is the extent of the harm imposed by fireworks and whether it can be mitigated by exercising care.

Under tort law, strict liability is imposed on those who cause harm while engaging in an abnormally dangerous activity. Abnormally dangerous activities generally include such activities as blasting dynamite or transporting extremely hazardous materials. The factors used to determine whether a particular activity is abnormally dangerous include: 1) the severity of the harm caused by the activity; 2) whether the location of the activity is appropriate; 3) the benefit to society or to the community of engaging in the activity and whether it outweighs the harm; and 4) whether harm caused by the activity can be minimized by exercising care.

Here, the location of the activity--in the middle of the lake on the fourth of July--seems appropriate. Fireworks also bring a significant benefit to society by providing entertainment to a huge amount of people, particular for festive occasions such as the Fourth of July. However, the harm caused by fireworks is great; nationally, fireworks cause 9,000 injuries and 5 deaths per year. Furthermore, the plaintiffs established that fireworks can still misfire even with careful use by experts. While there are factors weighing in each direction, the fact that fireworks are explosive devices with a potential to cause harm including death even when exercising care cuts in favor of considering the use of fireworks to be an abnormally dangerous activity. And while fireworks are enjoyable, they do not provide the community with a necessary function. The judge was incorrect, and fireworks displays, because they are an abnormally dangerous activity, should subject defendants to strict liability.

2.   A reasonable jury could conclude that the conduct of the fireworks company was negligent

The judge was also incorrect as to the second point; a reasonable jury could find that the fireworks company's conduct was negligent. The issue is whether the company breached its duty in the placement of the fireworks.

A prima facie showing of negligence requires duty, breach, actual and proximate causation, and damages. A defendant has breached its duty of care if it did not exercise the care that a reasonable person would have under similar circumstances.

Here, the company owed a duty of care to individuals who might be harmed by its fireworks display. The plaintiffs also showed cause, at least with respect to the wife's injury (the mortar hit her dock and hit her with flaming debris), and damages (she was severely injured). A reasonable jury may have found that the standard of care was determined by the applicable fireworks statute requiring a 500 foot safety zone around the launching site--though the statute does not prove a breach as it not apply to water launches, in the absence of other regulations, this is reasonable guidance. There is no indication that the defendants proved an industry standard for water launches that would have weighed in the opposite direction (though it would not have been dispositive). It seems that the company could have feasibly taken further measures to prevent or mitigate the injury, such as changing the launch location or warning all residents of the lake to stay back from the shoreline. Based on the evidence available, a reasonable jury could gave found that launching fireworks from a site that was under 500 feet from four different land or dock locations on the lake was a breach of the company's duty of care.

3.   The misfiring mortar was the proximate cause of the husband's injuries

The issue is whether, if the company is determined to have breached the standard of care, the husband's injury was a foreseeable consequence of the company's breach. A showing of both actual and proximate causation is necessary for a finding of negligence. Actual cause is "but-for" cause--the injury would not have occurred but for the actions constituting the breach. Proximate cause, on the other hand, means that the injury was the natural and probable consequence of the action. Where the resulting injury is caused indirectly, the harm must have been foreseeable. Generally, harm caused to rescuers of those who have been injured is considered foreseeable.

Here, the husband was inside the house, and saw his wife get injured by the mortar. He became injured after he ran out to help her, tripping on the rug, falling down the stairs, and sustaining a fracture. It is the natural and probable consequence of setting off fireworks too close to shore that someone on shore might get injured, and it is foreseeable that the rush to aid an injured person might cause additional injuries. It is not necessary that the particular injury of a fracture due to falling down a flight of stairs cold specifically be anticipated--this injury is of the kind that is to be expected from those who rush to help someone who has been injured by fireworks. Therefore, the mortar was the proximate cause.

4.   The homeowners association can be held liable for the fireworks company's acts or omissions

The homeowners association can be held liable. The issue is whether the homeowners association expressly authorized the tortious action here, or whether the action was committed in the scope of employment with a desire to serve the principle. Principals are liable for the torts of their agents if they expressly authorize them or if the torts are committed in the scope of employment with a desire to service the principle. A principal/agent relationship exists when there is assent to the relationship, the activity engaged in by the agent benefits the principal, and the principal has control over the agent. Even where the control element is not met, and the company is considered an independent contractor, there is still liability for torts stemming from inherently dangerous activities. This is an exception from the general rule that principals are not liable for torts of an independent contractor.

Held liable if fireworks company was an agent and if vicarious lability applies: expressly authorized or scope of employment/desire to service. Here the fireworks company was a contractor, and it appears that the association did not have control over the manner of the company's performance. However, the homeowners association can still be held liable because, as explained above, fireworks are an bnormally dangerous activity. Therefore, the judge was wrong and the association is liable.

Analysis of the Sample Essay

Okay. So we are going to walk through an actual test taker's answer to a torts MEE question from the July 2017 bar exam, and this answer is provided by New York. So this test taker took the bar exam in New York. I'm going to discuss the strengths and weaknesses of this answer.

But first, remember that each jurisdiction, that is, each state, grades the MEEs for their respective jurisdiction. So what one state identifies as a very good or strong essay answer may not necessarily translate as a very good or strong essay answer in another state. Each state uses the model answers provided by the National Conference of Bar Examiners for the MEEs. But each state has its own graders, and each state's graders have some flexibility in allocating points to their test takers.

So when you compare your answer to an old answer, focus more on whether your answer picks up the general rules and analysis identified in the model answer. If so, you are likely going to score really well on that essay. But know that there may be some problems with model answers. For instance, the rules may not always be correct, or the analysis may not be as robust or as effective as it can be.

All right. Let's take a look at the model answer provided by New York for the July 2017 MEE. Right off the bat, you can see that the model answer is visually appealing, that is, you can see that the test taker didn't just write her answer in one giant paragraph. Rather, she used multiple short paragraphs, which likely helped the grader better follow the test taker's answer.

One other effective technique that the test taker did to help the grader better follow her answer was that she included the transition phrase "Here" every time she moved into her application. You can also quickly see that this test taker also chose to format her answer in a CRAC, and the first C of her CRAC was a clear, one-sentence heading at the start of each of the four separate subparts to the question.

You will also notice that even though the test taker wrote her answer as a CRAC, she still wrote a sentence within her rule paragraph, where she clearly identified the issue for each subpart. That's fine. It wasn't necessary, but it's fine. It showed the reader that she understood what each subpart was testing.

Overall, this essay answer was very well organized and it included clear rules and effective application. There were some grammar issues and misspelled words here and there, but they did not take away from the overall strength of the answer. Let's quickly look at each subpart.

Subpart 1 is likely the strongest part of the test taker's answer. She provided a clear and confident conclusion and provided some really nice substantive rules. She started with a broad rule for abnormally dangerous activities, and then she effectively funneled down to more specific rules relating to what a court may consider in determining whether an activity is abnormally dangerous.

So the rule paragraph was quite good for subpart 1, although I do think that the test taker could have done a better job of talking about strict liability. She referenced abnormally dangerous activities as falling under the concept of strict liability, but she didn't fully or directly discuss what strict liability is.

However, the application for subpart 1 was very strong. The test taker effectively used the various statistics included in the facts to support her conclusion that the fireworks display imposed substantial risk of harm, no matter how much care was exercised. She also acknowledged the counterargument, that is, that fireworks can be popular activities, particularly on the 4th of July.

Subpart 2 was also strong. Like subpart 1, the test taker had a clear and confident conclusion. She clearly identified the elements for negligence and she effectively used the facts relating to the location of the fireworks launch to establish that the fireworks company breached a duty of care.

She also did not forget to address the causation and damages elements for negligence, which I imagine some test takers might have done since they may have been so focused on breach of duty. Here, the test taker quickly discussed causation and damages, which likely increased her score for this subpart.

A potential negative in this subpart is that the test taker did not directly address that an unexcused violation of a statutory standard can establish a breach of duty, but that compliance with a statutory standard does not necessarily imply no breach of duty.

All right. Let's look at subpart 3. The test taker did another effective job with subpart 3. She provided a clear and confident conclusion, she provided a nice funnel of rules from causation from big, broad rules to narrow, specific rules, which included providing rules for actual cause as well as proximate cause. The test taker provided a really effective application as to why the husband's injuries were foreseeable and therefore proximately caused by the defendant's actions.

I would have also quickly explained how the defendant's actions were also the actual or but-for cause of the husband's injuries, just to be safe, because the court would not have had to address proximate cause if the injuries were not first actually caused by the defendant's actions.

Let's talk about subpart 4. Finally, the test taker did a good job with subpart 4 as well, but her rules and the general organization of her CRAC were not as strong as her other subparts. Subpart 4 was definitely the weakest part of this essay answer. I suspect that the test taker may have been running out of time to complete this subpart answer.

She did not identify vicarious liability as the main rule and issue until the last paragraph of her essay answer, after she had already discussed what an independent contractor is, and after she had discussed when a principal can be held liable for the actions of an independent contractor.

So the organization of her rules was off. Her big, broad rule for vicarious liability came later in her answer, and when she did discuss the rule for vicarious liability, the rule statement was a bit confusing. She also had only one sentence of application for this subpart, which likely was not enough. I think she could have done a better job explaining why the fireworks company was, in fact, an independent contractor and why the HOA could still be liable for the company's actions.

But again, overall, I think this model answer does a really good job of showing clear and confident conclusions. The answer shows what clear and direct rules can look like. The answer shows generally how you can funnel from broad rules to more specific rules. And the answer shows how to effectively use facts from the hypo to support your conclusions.

Yes, there were some grammar issues and misspelled words, and it seemed like the last subpart was rushed, but the graders understand that you have a limited amount of time to write out your answer, particularly for long and potentially complex questions like this particular MEE torts question.

The graders are not going to take away points for grammar issues or misspelled words. They're looking to award you points, and you can get some really good points when you have effective rules and analysis like this model answer from New York.

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