PHILOSOPHY OF LAW
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HAND-OUTS
SPRING 2003



HAND-OUTS


What sort of "wrong" is a tort?

John has a new job downtown. As his first day on the job approaches, he becomes excited at this new prospect. He has trouble falling asleep the night before the "big" day. He sets his alarm clock to go off in time for him to make it to work with a half hour to spare. Unfortunately, the alarm clock fails (malfunctions) during the night. It does not "go off" when it is supposed to. When John wakes up, he has just a few minutes to get downtown. He throws on his clothes, races out of the house, and catches an express bus. The bus driver seems to be in a hurry, too. Indeed he is driving at an illegal speed. John, however, does not mind. As far as he is concerned the sooner he gets to work the better. The bus rounds a corner at a major intersection at the precise moment that a construction crew is lifting a heavy steel beam with a crane. The crew loses control of their rig, sending the steel beam through the side of the bus and onto John. Now in Mercy Hospital - with his right leg in traction, intravenous tubes, and a soaring medical bill - John learns that he has lost his job. Is anyone but John responsible for his plight? The alarm clock manufacture? The bus driver? The construction crew? Have any or all of these parties wronged John in a way that the law would recognize?

Negligence and Fault

One is negligent if one fails to exercise due care or regard for the safety of others, thereby exposing them to an unreasonable risk of harm. To say that someone is negligent is not necessarily to say that the person is inattentive or forgetful or just plain stupid, although this may be the case. Liability in negligence is based on the idea of fault. A person is liable only for those consequences of his conduct that are his "fault." And fault in the law has little to do with one's personal shortcomings or flawed character, flawed and weak as any one of us may happen to be. Suppose you leave a banana peel on the stairs. John slips on the banana peel and breaks his neck. When the law asks whether you acted negligently, when it asks whether John's injury was your fault, it does not inquire into your character. Witnesses are not brought forth to show that you are a very careless person with little regard for the feelings or safety of others, although this may be the case. It does not ask whether you (personally) realized the danger of dropping your banana peel on the stairway or whether you ever gave a moment's thought to what might happen if someone walked up the stairs behind you and slipped on the banana peel. Perhaps you never thought about it. The law isn't interested. Instead, it merely asks whether a reasonable person would have appreciated the danger. If it decides that a reasonable person would have realized the danger, it judges you at fault.

Making the Case for Negligent Harm

The law of tort has traditionally required that a plaintiff who wishes to recover against a defendant establish the following: (1) that the plaintiff was injured; (2) that the defendant had a duty to exercise reasonable care in the context within which defendant acted; (3) that the defendant violated or breached that duty, i.e., failed to exercise his or her duty of reasonable care; (4) that the defendant's breach of that duty caused the plaintiff injuries.

Negligence and Risk

Negligence is a matter of risk and it has been defined as "conduct which involves an unreasonable great risk of causing damage," or more fully, "conduct which falls below the standard established by law for the protection of others against unreasonably great risk of harm." In most cases, negligence occurs as a result of carelessness or heedlessness. But it may also arise in those situations where a person has considered all the possible consequences quite carefully and has exercised his own best judgment. The standard imposed by the community is an external one, based upon what the society demands of the individual and not upon his or her notions of what is proper. The idea of risk also involves the idea of recognizable danger, based on some knowledge of the existing facts, and some reasonable belief that harm may follow. But the danger may not, in fact, have been recognized by the actor.






Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003


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