The term tort is common within legal jurisdictions and refers to a civil wrong that may result in someone else suffering an injury or loss of property. As such, a tort results in legal liability for the individual or group of people who commit the act. In this case, such an action is a tortious act. The individual or group of people who engage in tortious acts are tortfeasors. To file such a case, several legal processes are involved. For example, the injured person or party, commonly referred to as the plaintiff, is required to file a suit against the injuring party, referred to as the defendant. Such claims, as mentioned before, may incorporate costs for actual damages that may require compensation for the injury caused or expenses to cover the material damage caused in due course.
While summing up the above explanations, Barravecchio (2013) notes that negligence is part of tort law, which falls under civil law and indicates that a wrong has been committed. Furthermore, he demonstrates that negligent behavior is the cause of a negligent tort and happens when a particular person tasked with a given responsibility fails to practice due diligence (p. 4).
The Act Of Negligence In The Case Scenario Provided
There are various acts of negligence in the case scenario provided for this study. In one instance, Kim’s bodyguards show some attributes of negligence when they leave their boss alone. It is in the same context that the boss gets robbed of valuables worth a lot of money. Furthermore, some bodily injuries are recorded in due course, all of which are aspects of negligence caused by the bodyguards.
Responsibilities Owed To Kim by Her Bodyguards under the Tort of Negligence
Duty of Care
According to research, this is one of the duties that Kim’s bodyguards should fulfill. Failure to do so might give rise to liability. In this aspect, the duty of care requires that each person should care for their neighbor. In this instance, according to the law of torts, a neighbor refers to someone who might be affected by someone else’s actions in a direct or indirect manner. Therefore, according to this explanation, each member of society has the responsibility to act reasonably in a way that prevents and avoids unreasonable risks to other members of the community. In the case scenario provided, Kim’s bodyguards should ensure that their boss is well protected. Achieving this objective, as per the above explanation, is required by their employment contract and the general requirements of the tort of negligence. Therefore, the bodyguards owed Kim a duty of care.
Furthermore, according to research, under certain conditions, a special duty can arise for the defendants, in this case, the bodyguards, to offer protection to the plaintiff, in this case, Kim, from harm. There are various sources from which such duties can be established. Some of them include contractual relationships and professional responsibilities. In this instance, a contract defines higher and more elaborate standards that allow both clients and third parties to sue for unsatisfactory or incompetent performance or, on other occasions, professional work that resulted in injuries to them.
There are different circumstances in which the duty of care can be considered breached. Sources reveal that a duty of care is breached when someone exposes another person to a given risk or harm. As mentioned before, several bonds tie the two parties together, which can be through a contract or professional responsibility. Some other scholars argue that breach of duty or negligence occurs when someone engages in unreasonable practices that would not be undertaken by a reasonable person under apparent conditions (Giliker & Beckwith, 2013, p. 10). Furthermore, according to the law, the reasonableness of the risk is weighed by various factors that depend on the social utility of the person’s conduct or the ability to minimize the threat.
Causation of Duty of Care
Causation is one of the most important components of the tort. In this case, it is considered that the breach of duty has to be the actual cause of the damage caused to the plaintiff. Therefore, to demonstrate causation, the law requires the plaintiff to establish that the amount of loss or injury suffered was caused by negligence on the defendant’s part. In this aspect, different types of causes are considered by the courts.
The first type of cause is referred to as proximate cause. The defendant is held liable in instances where the conduct associated with them was the proximate cause of the loss and injuries suffered by the plaintiff. The second type of cause is a supervening or intervening cause. As the law requires, in this aspect, the behavior and actions of the defendant must have been instrumental in bringing about or causing the injury or loss to the plaintiff. However, at times, the defendant might escape such liability in instances where the court determines that the intervening event was not foreseeable to a reasonable individual. Also, on the same note, the defendant might avoid liability if damages or losses suffered by the plaintiff were not foreseeable to the defendant (Hunter et al., 2007, pp. 1741-1747).
According to research, the most viable intervening causes that defendants usually cite are natural conditions and forces and, on some occasions, unexpected negligent human conduct. In this aspect, natural forces include unfavorable and extraordinary weather conditions, volcanic activities, earthquakes and other seismic activities, and the behavior of animals. On the other hand, negligent human conduct includes behaviors that might expose someone to abnormal risks. However, the law excludes human criminal conduct by a third party as an intervening cause.
Legal Remedies for Torts
From a general perspective, a remedy is a mechanism through which enforcement of a right is carried out and violation of a right is prevented or redressed. In the legal context, as in this scenario, the word remedy simply means the redress of a breach of a legal right. As per the requirements of the law, all rights violations must be redressed. This is one way of preventing lawbreakers from repeating such offenses and warning others against engaging in such conduct. Therefore, remedies are among the most significant aspects of torts. They are important because it is through them that a person may be restored to their previous position.
Damages are one of the most significant aspects of legal remedies for torts. As some scholars argue, damages are the primary relief in instances of a tort. They refer to monetary compensation paid by one individual to another for loss, injury, or damage caused. On the same note, damages might be awarded when a tort has occurred. As explained in the preceding sections, there are different types of damages, and they may differ according to the nature of the tort.
The first type of legal remedy is called contemptuous damages. These types of damages are awarded in instances where the claimant establishes that a tort was committed by the defendant, although the claimant suffered no significant losses. Some scholars often argue that such damages express ridicule, and their primary intention is to show disapproval of the plaintiff’s decision to bring such a case to court. The amount awarded for such damages is minimal, as it is the opinion of the court that even though the plaintiff suffered the loss as recorded, they do not deserve substantial compensation (Dobbs, 2008, p. 30).
Such types of damages are very different depending on the country. In some countries, minimum amounts are set for damages. Such a move aims at preventing the filing of unnecessary tort lawsuits that overload civil courts.
The second type of damages is nominal damages. This type of damages, as research indicates, is awarded to represent legal recognition that some right of the plaintiff was indeed infringed through the defendant’s breach of duty or, in some instances, wanton conduct. Like the previous scenario, the amount of money awarded in such an example varies according to the nature and circumstances that led to the occurrence of the case. Such damages are awarded when the court establishes that a wrongful act was committed against the plaintiff, although a low opinion of the merits of the conduct is formed as a result. Unlike contemptuous damages, where the plaintiff ought not to have filed the case, nominal damages call for the filing of the suit to establish the plaintiff’s rights, with monetary compensation being less significant.
Furthermore, the third type of damages is referred to as ordinary damages. As opposed to the other kinds of damages discussed above, this type of damages represents the loss incurred, whether small or significant. When an injury or type of loss is to be compensated by damages, several considerations have to be made. This is meant to determine the amount of money that would restore the injured individual or party to their previous position. Furthermore, when deciding the same, the plaintiff’s estimate of the amount is considered to be the maximum limit (Anderson, 2001, p. 399). Other legal procedures follow when determining this critical aspect of compensation.
The last type of damages that would be relevant in this scenario is referred to as exemplary damages. In this type of damages, as research concludes, the manner in which the tort was committed is taken into consideration by the court when assessing the losses. Furthermore, in these types of damages, courts often make awards in excess of compensatory limits. Such a move aims at minimizing the recurrence of such behavior in the future. In other words, this form of award is referred to as punitive or exemplary damages. According to Lord Devlin, one of the authorities associated with this type of damages, such damages are relevant in three circumstances. For example, exemplary damages might be applied when oppressive or unconstitutional conduct is carried out by government servants. Secondly, they may be relevant if, upon calculation, the defendant’s conduct is established to have generated profits for the defendant that are well above the compensation awarded to the plaintiff. Lastly, this form of damages might be awarded in instances where exemplary damages are authorized by a given statute.
Alternative Dispute Resolutions to Avoid Court Rooms
Mediation
This is a voluntary process in which a neutral person, referred to as a mediator, helps facilitate and promote communication and reconciliation between conflicting parties, enabling them to reach an agreement (Sherman, 2002, p. 401). For an efficient process, the mediator describes the expected methods and rules that will facilitate the proceedings. Mediation helps the conflicting parties understand each other’s points of argument. In other instances, the mediator will have to approach the different parties separately to address emotional issues.
Arbitration
It refers to the process of submitting a disputed matter to someone who is impartial in decision-making. It is facilitated by the arbitrator, who controls the whole process. To perform their duties efficiently, the arbitrator has to conduct hearings. During such proceedings, all parties present their evidence through documents, testimonies, or exhibits. Research indicates that the arbitration process is very useful in solving labor disputes. The results can be binding in instances where all parties agree to the decision made by the arbitrator.
Most contracts signed between two parties require, in many instances, that conflicts arising from them be arbitrated before court action is sought. Arbitration services are offered by many people, although in most instances, attorneys or lawyers, professionals, or groups of professionals provide their services as arbitrators.
Conclusion
The tort of negligence has been used for quite some time in solving cases similar to the one described in this article. It would be important for Kim to take into consideration the processes mentioned above to ensure that justice is facilitated. On the other hand, out-of-court dispute resolution can also be used if litigation fails or in instances where the conflicting members agree to it. As research indicates, mechanisms such as arbitration and mediation have been applied for a long time. Therefore, their relevance in this context is of vital importance.
Selecting the appropriate method to use when settling a dispute out of court is also important. Some of the critical considerations that need to be considered in this aspect include the nature of the case, whether private or public; decisions made by judges or arbitrators; the time span available; costs and other expenditures that might be required; and, finally, maintaining relationships. As a result, Kim should consider the aspects discussed in this paper.
References
Anderson, M., 2001. Transnational corporations and environmental damage: Is tort law the answer. Washburn Lj, 41, p. 399.
Barravecchio, J.A., 2013. The tort of negligence. Legaldate, 25(4), p. 4.
Dobbs, D., 2008. Law of Torts (Hornbook Series). West Academic.
Giliker, P. and Beckwith, S., 2000. Tort. Sweet and Maxwell.
Hensler, D.R., 2003. Our courts, ourselves: how the alternative dispute resolution movement is re-shaping our legal system. Penn St. L. Rev., 108, p. 165.
Hunter, D. and Salzman, J., 2007. Negligence in the air: the duty of care in climate change litigation. University of Pennsylvania Law Review, 155(6), pp. 1741-1794.
Sherman, E.F., 2002. Group Litigation under Foreign Legal Systems: Variations and Alternatives to American Actions. DePaul L. Rev., 52, p. 401.
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