Tort Law

Introduction

This study is based on tort law. In this essay, researcher has critically analyzed the tort law on the basis of secondary data analysis. To conduct the research, in an effective manner, the findings of various past researches have included in this study while referencing blogs, articles, reports, etc.

This paper is based on discussing the statement that “It may be comforting to think that we all owe each other a duty of care in tort law but in reality this is not always the case.” This paper has supported to understand the tort of law in an effective manner.

Main Body

According to the views of [1], tort law supports to identify the duty of care in the context of legal obligation. This law is based on an individual while involving the devotion to a standard of reasonable care. This law gives concern towards performing the acts that could be directly or indirectly harm others.

In support of this, depicted that it is essential for the claimant to show duty of care that is imposed by the law Moreover, it is identified that breaching a duty is a subject of an individual liability towards duty of care. Tort law is the first element that needs to be established to precede the action in the context of negligence.

According to this, operation of law takes place between individuals who do not have any current direct relationship, however eventually become related in some manner, as per the common law.

In the views of [2], duty of care may be formalize on the basis of social contract while giving concern towards the responsibilities that is held by an individual in the context of fulfilling the social responsibilities.

It is a popular notion that every people has to fulfill some kind of universal duty of care which every individual needs to fulfill  which enables to eliminate the situation of incompetence or misconduct of any individual, company or public authorities towards other society.

It enables to remain careful towards the rights of others while distinguishing between the duties which are characterized in an effective manner as a social obligation. Tort law supports to offer true legal duties or responsibilities which enables towards enforcing the claims towards the damages.

For instance, tort of law supports to understand that every person should fulfill the duty of care [3]. For instance, if a person driving a car, then under a legal duty of care he needs to take care of other motorist or pedestrian. It is necessary for the person to not give anyone harm from their action. In the context of a firm, it is a duty of the firm to provide safe and protected employees to its employees.

For instance, if an employee gets a electric shock due to negligence of care from the side of the firm then the firm will be answerable and the employee can file a case against the firm under tort law [4].

There is one more incident found, in which a firm offers a car to the employee for the purpose of accomplishing the organizational task. However, the employee has used it for his personal task after the official hours and an accident has taken place by the employee.

So, in this context employee will be answerable but not the firm as the employee was using the vehicle after the official hours for his personal purpose.

According to Liebeck v. McDonald’s Restaurants coffee case has taken place in the year 1994. According to which a product liability lawsuit has became an issue of the debate in the US under the tort law. Under this case, the claimant Stella Liebeck, who was 79-year-old woman under civil jury in New Mexico [5].

The woman has suffered from third-degree burns in her pelvic region due to accidentally spilled of McDonald’s restaurant hot coffee in her lap after purchasing it. Liebeck was paid $640,000 for this incident and she was hospitalized for eight days and during this time period she underwent skin grafting which was followed by two years medical treatment.

Palsgraf v. Long Island Railroad Co., (1928), is one of the leading tort cases, under which American tort law remained on the question of liability in the context of an unforeseeable claimant. This case has taken place by the, the highest state court in New York Court of Appeals. Under this case, the plaintiff, Helen Palsgraf, obtained a jury verdict of $6,000.

Under this case, it is identified that there was not any negligence because of the employees, towards helping the man board [6]. Additionally, the injury taken place Palsgraf was not due to negligence towards duty of care and there was not any foreseeable harm from aiding a man with a package. So, the railroad won the case.

In support of this, it is identified that it may be comforting to think that we all owe each other a duty of care in tort law but in reality this is not always the case. In this context, [7] depicted that the idea of a general duty of care is widely accepted and according to it, there are significant differences between the common law jurisdictions as it concern towards the specific circumstances under which the duty of care exists.

Moreover, courts cannot enforce unlimited liability as well as cannot consider everyone liable for everyone else’s problems. So, the tort law has designed to expose the defendants in the context of the liability in an undefined amount of time and class. However, [8] identified that there must be some reasonable limit for the duty of care but it is difficult to set that limit.

There are few limitations of actions in tort law. According to this law, the limitation of the period is procedural instead of substantive in nature as in this law, it is tried to bar a remedy rather than justifying a claim. The common principle of this law is that there is a limited period of six years from the date on which the action has taken place.

However, there are some exceptions too. In the context of the actions in tort for damages the relevant time period is three years for the personal injury. Moreover, this time span starts from the date on which the cause of incident accrued as well as from the date on which the individual firstly get acknowledged about his injury [9]. Additionally, discoverability test is also provided under the law in the cases where latent damage to property takes place.

However, in the contrary, the limitation period of claims under the Consumer Protection Act 1987, is three years and this time is declared for personal injuries as well as for other forms of damage which are actionable under the Act [10]. In like manner, the limitation period for the defamation claims is also for three years.

Statute of limitations is the time period during which a claimant should file the lawsuit against the defendant. This statute of limitations creates a beneficial opportunity for the defendant by offering them the opportunity to defend the lawsuit where the witnesses are available and the facts remain fresh in the minds of the defendant as well as in witnesses too [11].

Due to which, tort of law bars the plaintiff to file the lawsuit after the defined time period according to the statute of limitations expiry criteria. According to the tort law, statute of limitations enables the claimant to file the lawsuit after the cause of action in a particular time period. A cause of action should be taken by the claimant during the damages sustain.

However, delay discovery rule is also applicable where the plaintiff discovers the injury with reasonable diligence. This statute of limitations offers the privilege to the defendant [12]. The claimant should exercise the due attentiveness in the context of summons and the process towards the defendant. However, the defendant should be named in the context of the original complaint of the defendant.

In the contrary, if the claimant adds or amends the complaint, then the statute of limitations get interrupted. So, while filing the complaint there is a need of focusing towards the statute of limitations as it remains applicable towards the action [13]. However, the simple filing of the lawsuit does not create the situation of interruption towards the statute of limitations.

At the same time, if the claimant amends the complaint but the amendment not become able to create a new cause of action against the defendant, then the amendment should relate back to the original complaint under the statute of limitations. However, if the amendment becomes able to add a new cause of action then the amendment does not relate with the original complaint as it will not protect by the filing of the original complaint under the statute of limitations[14].

Under the statute of limitations a defendant must specifically raise or plead the defense. However, only a denial in the answer of the complaint will not be considered as a defense. It is essential to provide adequate facts and evidence. If the defendant fails to plead the defense, then it will be considered as surrender.

According to the point of view of [15], defendant who pleads a defense on the basis of the statute of limitations has the burden of proving the cause of action towards the claimant under the statute of limitations. However if the claimant, shows delay in the serving process on the defendant then the delay will be the plaintiff’s fault and he has the burden of explaining the delay.

[16] identified that the statutes of limitations are applicable to tort cases which depends on the government law of the region. In the context of healthcare and medical malpractice claims, generally it is governed under not more than two-year statute of limitations.

However, in the context of unsafe real property, defective construction or improvements towards the infrastructure, there are various regions that offer 10-year statutes of limitations. The statute of limitation is designed by the government while consulting it with various professionals.

For instance, in the context of Argentina, there is a general limitation of five years for the tort of law. However, the government of Argentina has designed specific terms and conditions for specific matters under local jurisdictions, where mediation process is mandatory.

At the same time, it is identified that the limitation of the period is can be interrupted by any kind of appeal of the right holder for the intention to abandon the right claimed which enables to tackle even defective petition which is made before an incompetent court [17].

In the context of Australia, there is a Limitation Act 1969 which outlines the particular periods of limitation for the specific causes of action[18]. For instance, a cause of action on tort will expire if the claimant does not claim the action within six years from the date of the cause under section 14, Limitation Act.

However under tort, the cause of action generally gets triggered by the limitation period which takes place under the time span in this context, the damage gets suffered and the cause of action gets increase from the time of the violation [19]. From the above data, it can be understood that different countries have different terms and conditions for tort law.

Conclusion

From the above study, it can be concluded that it is a duty of every individual to fulfill their duty towards the society. So, from the above study, it can be understood that however, tort of law offers the comfort to think that an individual, group or firm owe each other a duty of care in the tort law but in reality this is not always the case.

There are few limitations also which enables towards taking the action on time. Additionally, it supports the defender to provide the evidence in his favor as when the case remains fresh it is easy to recall the information as well as to gather the witnesses too.

References

Askeland, Bjarte, Keizô Yamamoto, Ken Oliphant, Olivier Moréteau, Attila Menyhárd, Katarzyna Ludwichowska-Redo, Helmut Koziol, Michael D. Green, and W. Jonathan Cardi, Basic Questions of Tort Law from a Comparative Perspective (Jan Sramek Verlag, 2015)

Chamallas M and Sperino SF. ‘Torts and Civil Rights Law: Migration and Conflict: Symposium Introduction’ [2014] Ohio St. LJ, PL 1021.

Christie GC ‘The Uneasy and Often Unhelpful Interaction of Tort Law and Constitutional Law in First Amendment Litigation’ [2014] 98 Marq. L. Rev, PL1003.

Currie, Janet M., and W. Bentley MacLeod ‘Savage Tables and Tort Law: An Alternative to the Precaution Model’ [2014] 1 The University of Chicago Law Review PL 53.

Daller MF, Tort law desk reference: A fifty state compendium (Wolters Kluwer Law & Business 2017).

Ferrara, S. D., Baccino, E., Boscolo-Berto, R., Comandè, G., Domenici, R., Hernandez-Cueto, C., … and Pinchi, V. (2016). Padova Charter on personal injury and damage under civil-tort law. International journal of legal medicine, 130(1), 1.

Jane Wright, Tort law and human rights (Bloomsbury Publishing 2017).

Priest GL and Buckley H ‘The Expansion of Modern US Tort Law and its Excesses: The American Illness’ [2013] Essays on the Rule of Law, PL 249.

Richard, A. Posner ‘Instrumental and Noninstrumental Theories of Tort Law’ [2013] 88 Ind. LJ, PL 469.

Ulrich Matter and Alois Stutzer ‘The Role of Lawyer-Legislators in Shaping the Law: Evidence from Voting on Tort Reforms’ [2015] 58 The Journal of Law and Economics, PL 357.

Zamore JD, Interference with Lawful Business. Business Torts (2016).

Zenon Zabinski and Bernard S. Black, The deterrent effect of tort law: evidence from medical malpractice reform (2015).

[1] Ulrich Matter and Alois Stutzer ‘The Role of Lawyer-Legislators in Shaping the Law: Evidence from Voting on Tort Reforms’ [2015] 58 The Journal of Law and Economics, PL 357.

[2] Jane Wright, Tort law and human rights (Bloomsbury Publishing 2017).

[3] Zenon Zabinski and Bernard S. Black, The deterrent effect of tort law: evidence from medical malpractice reform (2015)

[4] Ferrara, S. D., Baccino, E., Boscolo-Berto, R., Comandè, G., Domenici, R., Hernandez-Cueto, C., … and Pinchi, V. (2016). Padova Charter on personal injury and damage under civil-tort law. International journal of legal medicine, 130(1), 1.

[5] Richard, A. Posner ‘Instrumental and Noninstrumental Theories of Tort Law’ [2013] 88 Ind. LJ, PL 469.

[6] Askeland, Bjarte, Keizô Yamamoto, Ken Oliphant, Olivier Moréteau, Attila Menyhárd, Katarzyna Ludwichowska-Redo, Helmut Koziol, Michael D. Green, and W. Jonathan Cardi, Basic Questions of Tort Law from a Comparative Perspective (Jan Sramek Verlag, 2015)

[7] Currie, Janet M., and W. Bentley MacLeod ‘Savage Tables and Tort Law: An Alternative to the Precaution Model’ [2014] 1 The University of Chicago Law Review PL 53.

[8] Daller MF, Tort law desk reference: A fifty state compendium (Wolters Kluwer Law & Business 2017).

[9] Zamore JD, Interference with Lawful Business. Business Torts (2016).

Priest GL and Buckley H ‘The Expansion of Modern US Tort Law and its Excesses: The American Illness’ [2013] Essays on the Rule of Law, PL 249.

[10] Zamore JD, Interference with Lawful Business. Business Torts (2016).

Priest GL and Buckley H ‘The Expansion of Modern US Tort Law and its Excesses: The American Illness’ [2013] Essays on the Rule of Law, PL 249.

[11] Christie GC ‘The Uneasy and Often Unhelpful Interaction of Tort Law and Constitutional Law in First Amendment Litigation’ [2014] 98 Marq. L. Rev, PL1003.

[12] Christie GC ‘The Uneasy and Often Unhelpful Interaction of Tort Law and Constitutional Law in First Amendment Litigation’ [2014] 98 Marq. L. Rev, PL1003.

[13] Chamallas M and Sperino SF. ‘Torts and Civil Rights Law: Migration and Conflict: Symposium Introduction’ [2014] Ohio St. LJ, PL 1021.

[14] Jane Wright, Tort law and human rights (Bloomsbury Publishing 2017).

[15] Ulrich Matter and Alois Stutzer ‘The Role of Lawyer-Legislators in Shaping the Law: Evidence from Voting on Tort Reforms’ [2015] 58 The Journal of Law and Economics, PL 357.

[16] Ferrara, S. D., Baccino, E., Boscolo-Berto, R., Comandè, G., Domenici, R., Hernandez-Cueto, C., … and Pinchi, V. (2016). Padova Charter on personal injury and damage under civil-tort law. International journal of legal medicine, 130(1), 1.

[17] Askeland, Bjarte, Keizô Yamamoto, Ken Oliphant, Olivier Moréteau, Attila Menyhárd, Katarzyna Ludwichowska-Redo, Helmut Koziol, Michael D. Green, and W. Jonathan Cardi, Basic Questions of Tort Law from a Comparative Perspective (Jan Sramek Verlag, 2015)

[18] Daller MF, Tort law desk reference: A fifty state compendium (Wolters Kluwer Law & Business 2017).

[19] Chamallas M and Sperino SF. ‘Torts and Civil Rights Law: Migration and Conflict: Symposium Introduction’ [2014] Ohio St. LJ, PL 1021.