Torts - Defenses

In Rebecca & ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues.

The issue in this case as it relates to the Kentucky tort of negligence is governed by rules or principles established by the courts. The elements of negligence are a duty the defendant owes to the plaintiff, a breach of that duty by the defendant, a causal connection between the breach and the plaintiff's injury, and actual injury. In the absence of any one of these elements, no cause of action for negligence will lie.

The Tort of Negligence put the claimant in the position to prove that the defendant owed to them a duty of care, the defendant breached that duty and the claimant must have suffered damages as result of that breach (Donoghue v Stevenson [1932] AC562).

Contributory Negligence: A court may find a plaintiff contributory negligent or partially responsible for their injuries.

In the district court trial, the jury sided with the plaintiff and ruled that the St. Louis Hockey Club was vicariously liable for the plaintiff’s injuries. The trial court agreed with the plaintiff’s argument that as per the doctrine of respondeat superior, the defendant was liable for their employee’s negligent actions that led to the plaintiff’s injuries. As part of their

 This can be defined as a physical injury which has been caused by actual bodily

Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case

Negligence is the most common type of liability case that healthcare organization face. It often occurs when a person fails to hold up to the accepted standards of behavior. There are four elements essential to proving negligence: 1. a duty of care, Duty is a legal obligation the defendant owes to the plaintiff. In a negligence case the duty is most commonly expressed as a general obligation to act with care in other words to conduct oneself as a reasonably prudent person would do in similar circumstances. 2. Breach of that duty: A breach of duty occurs when one person or company has a duty of care toward another person or company, but fails to live up to that standard.  A person may be liable for negligence in a personal injury case if his breach of duty caused another person’s injuries. Once the duty has been established, the plaintiff must show that it was breached by presenting evidence of the facts of the case and testimony from expert witness which is usually the same witness who established the duty in the beginning. 3. injury: Damage or harm

Due to the direct or proximate cause of negligence from the defendant has led to a disaster of massive proportions. The defendant through their inactions and negligence in the up-keeping, maintenance, and construction of the dams, that eventually led to the disaster, owe the plaintiff punitive damages.

RULE - Negligence occurs when an entity fails to exercise ordinary care to avoid injury to others. For a valid negligence claim the plaintiff must establish the following elements of proof: duty of care, breach of duty, cause in fact, proximate cause, and actual loss or harm. If the defendant can attack any of these elements they may successfully defend the negligence suit. The first element is establishing the presence of a duty of care owed by one party to another.

Small injuries or damages may occur when products malfunction, death may occur, or there could be damage done to ones property. The company could face possible lawsuits and in order to prove negligence, an individual must have had a duty of care, which is defined as having responsibility to act in the best interest of another. A company must always be ready to defend itself in all the possible issues that may arise and cause any form of lawsuit (WiseGeek, 2003).

Causation: An essential element of an injury claim that connects the defendant’s conduct with a resulting effect, typically an injury.

The main idea of the law of negligence is to ensure that people exercise reasonable care when they act by measuring the potential harm that may foreseeably cause harm to other people. Negligence is the principal trigger for liability to ascend in matters that deal with the loss of property of personal injury. Therefore, a person cannot be liable for something unless they have been found negligent or have contributed to the loss of property or injury to the plaintiff (Stuhmcke, 2005). There is more to

Whether the breach of duty has caused the plaintiff’s injury is the third element of negligence. Requirements for causation are causation in fact and proximate cause. Causation in fact is determined by the “but for” test, which means if it was not for the defendant’s breach of duty, harm or injury would not have occurred. Proximate cause is when the connection between the action (breach of duty) and the injury is strong enough to impose liability. Another issue that needs to be considered is foreseeability because the defendant’s action must have created a foreseeable risk of injury. In this case, the crew of Titanic was navigating the ship during the night at high rate of speed in water with

rightly mentions the causation of injury or harm.It is an umbrella term that incorporates a