Law of torts
A tort law is a legal provision identifying remedies to the compensation of a person suffering from a wrong done by another person either willingly or negligently[1]. It would also cover harms meted on an individual arising from such circumstances as would involve strictness in liability and for which the complainant would seek legal suit. However, the classifications of the wrong as committed are done over a wide range of considerations in order to verify such a claim. For instance, there are torts which result from an intentional motive by a person to harm another (intentional torts) while there are others that result from one’s faults but are not intentional. However, in the two cases, the complainant (the person harmed) has entitlement to compensation by the offender (accused). In the later, the acts that lead to such an injury or loss are not intentional or expected. Nevertheless, there are some torts, which involve accidents that would have been prevented with care and as such does not constitute torts of negligence.
Normally negligence torts involve parties that share four elements including, where one party had the responsibility of protecting the other(S) and or the party fails to exercise such care as expected. Moreover, there exists a causal relation between the failure to exercise such care as expected and the harm suffered by the other party as well as there must exist an actual injury arising from such negligence in context. On the other hand, an intentional tort involves the offence by a party, which is well aware of such impending harm that would result to the other party.
The application of tort laws provides that individual persons have distinct rights, which the law of the land identifies, and protect[2]. The infringement of such law accords the harmed person compensation in terms of money. Understanding torts, therefore, holds that one must establish the act of negligence, the causation, fault, the interest covered by law as well as the actual damage suffered[3]. Negligence here refers to that act of failure to act in precaution in prevention of a certain happening whose outcome is considered fatal or whose outcome would inflict injuries or such sufferings to other persons. The causation here implies to what would be associated to leading into the suffering. For instance, in the case where David dies of fire in the nightclub, the fire would be said to have caused the death. However, understanding the cause of the fire leads to the question of whose fault it was and in such an illustration, Harry’s careless smoking would justify the fault to be his. Evaluation of the interest leads to an analysis of the legal provisions within the land where one understands what the law says about such an occurrence. The law of tort has a good structure where upon justification of personal liability in causing harm on someone else, then the accused should compensate the claimant as per the provision of the law of the land. The law of tort holds the supremacy of individual rights and therefore works to ensure that other persons do not infringe personal rights through negligence or carelessness[4]. Upon establishment of the actual damage suffered such as an injury, death and such sufferings caused to an individual, the court requires that such a person is compensated by the person liable of having caused the infringement of his/her right.
In the case study, it is possible to define these basic attributes to a tort with special attention to the different players. For instance, the act involved is careless lighting of fire by Harry, which causes David’s death and which is seen to be the fault of Harry. Harry’s act of smoking in the office is blamed to have caused the fire and as such, negligence is established with his failure to observe some caution as is necessary. Therefore, David’s death is the actual damage under analysis here. There are, however, various aspects of consideration in determining the liability of compensation is such a case as this. This is because it involves various parties who would in one way or the other been liable/responsible for the loss sustained. It is worth noting that the facts of a case determine the compensation criteria to be adopted. For instance, the law of tort identifies the presence of a person within someone else’ premises without owners permission would be understood as trespass and has the capacity of failure to be compensated whenever any harm of injuries are suffered by the intruder. Nevertheless, in the illustration under analysis, the presence of John, Sally, and David within the nightclub was legitimate as they were there on leisure purposes. It is, however, worth noting that injuries sustained or such an event as death suffered while in such a legitimate mission would impose responsibility not only to the owner of the night club but also to other parties being involved. It is, therefore, most obvious that the owner of the premise was to blame especially for the fact that he started the fire through his negligence. Nevertheless, a claimant (or any other party involved) may have been responsible in one way or another over a loss suffered or any kind of an injury while in someone else’ premise[5]. There are therefore basic tenets that such a case in tort involves where the court must establish the causation of every member involved before a conclusion is arrived at in regard to who is to be compensated or not.
The court, therefore, has an obligation of listening to each person represented in the case in order to gain information that would be useful in determining the course of proceedings. This, therefore, forms the basis of this analysis where in the case involving Harry, John, sally, David as well as the fire brigade. This paper evaluates the responsibility of each person towards each other in the event that saw David lose his life in a fire at the nightclub owned by Harry. John meets his friends by a coincidence and as such, it was not pre-arranged. Harry, on the other hand, was the owner to the nightclub and the fire brigade had the responsibility of ensuring such emergencies are attended to. It is also the responsibility of all persons going to the nightclub to ensure their personal safety and security is guaranteed through such measures as taking alcohol responsibly and in the event that one gets such drank, then one should go home.
By analyzing each individual in the case study, we are able to identify the obligation of each one towards caring for the other. In understanding John, he is seen to have just gone for his drink but in the process bumped accidentally on the friendly couple (David and Sally). The friendship that ensued in interactions informed John’s decision to help Sally in transferring the drunken David to the couch and then he left. This, therefore, shows no responsibility of John over David who perishes in fire.
On the other hand, Sally, David’s wife is fully responsible for taking care of her husband and thus should be blamed for running and leaving David to perish in the fire after fire breaks. Moreover, she was to blame for having opted to lay David on the couch instead of having him taken home or at another safer place than within the nightclub. However, her efforts to call for help from the fire engines show great levels of commitment to the course of safety to David. Nevertheless, the depression that John suffers after the news of David’s death can be blamed on Sally. This is because Sally who informed her in the next day that David had died in the fire, which was not mandatory. However, there would be no evidence to confirm this as a tort for the reason that Sally had no direct responsibility over John and she equally had no motive to have such news harm him.
Harry, the owner of the nightclub has all to blame for the reason of starting the fire while smoking. The blame here is that Harry was directly responsible for the start of the fire, which caused harm to David, a customer. David as a customer had the legal right to have his life protected and be safe in the nightclub as other people. However, the negligence of Harry causes the fire which combusts the nightclub and kills David who had slept while drunken. Besides him causing the fire, his nightclub lacked appropriate facilities to tackle such a problem, a fact that made the situation to worsen as they waited for the fire engine. It would be expected then that Sally as the claimant (on behalf of David) is entitled to compensation for the death of her husband caused by Harry’s irresponsibility and negligence[6].The court is therefore obliged to have the case properly determined to ascertain the responsibility of Harry in starting the fire through the negligence of poor smoking habit.
There is, however, the defendants point in the case proceeding where the negligence could be judged through the eyes of the defendant. Under such circumstance, the law has provisions on the event that a claimant can be liable for own injuries or losses sustained on another person’s property. In such a scene within this case, harry is justified to claim irresponsibility to the claimant for having not taken David home or elsewhere when he became unconscious in drunkenness. Her negligence can be justified for the reason that a nightclub is not a safe place for such a person and precautionary measures should have been taken by the claimant to have the deceased taken away from the scene of the accident. Moreover, Sally was negligent in that she never carried David out at the time of the fire but instead ran for her life leaving him to perish in the fire. The defendant would equally reason that the fire engine was to blame for having not reached the scene on time despite having been informed promptly of the fire. In such a reasoning, the court is obliged to act from the defendant and reason whether while under the same circumstances as he was, what different would it have done to save the life of David? Therefore, from the defendant’s perspective, the case has much to blame on the complainant who failed to deliver the expected help to the drunkard husband. It also involves the negligence of the fire brigade in having poorly serviced vehicles for such a response. the analysis of the prompt response to emergency by the engine reveals that lack of proper preparation was to blame on the delayed response on the fire emergency and as such the brigade was also responsible for such a death.
Another dominant attribute, in this case, is the level of skill and competence that the defendant would have applied while avoiding the occurrence of such a risk[7]. The activity in this context is smoking which according to the case was responsible for having started the fire. It is expected that the defendant would be responsible for his negligence in smoking at his office in the backyard of his office. The court would reason that the defendant’s activity of smoking was directly responsible of causing the fire, which resulted in the death of David. The act (smoking) however is not to blame for the fire and the defendant would not be accused of the same. Nevertheless, it is the irresponsibility and negligence in smoking that is blamed on causing the fire and as such, the defendant is guilty of the tort. Under such a consideration, Harry is directly liable for not being cautious while smoking which would have prevented the fire. Moreover, Sally, the deceased wife is equally to blame on failure to exercise precautionary, measures when the husband falls asleep, which would have been expected. The court would find Sally partially liable to accusation over the death of David for the reason that she opted to have him sleep on the couch in the nightclub instead of having him transferred back home. When the fire starts, Sally fails to carry David out but instead runs for own life and thus is seen to have applied any skill in saving the life of David. This equally brings the issue of John’s depression, which starts after being informed of his friend’s death by Sally. The failure of Sally to have adopted the most appropriate means of disclosing the information to john, Sally opts to use the phone way of communication, which led to the shock and the ultimate depression. Besides, the fire brigade is also blamed on the failure to apply the necessary skills in responding to such an emergency. It is professionally expected that a fire engine should be kept in a proper condition and under good service in order to enhance its efficiency in responding to such emergencies. The failure of the engine to respond promptly after being informed of the emergency was blamed on poor preparation. This being an attribute of competence and skills, therefore, confers tort to the fire brigade and this would this be used to justify negligence on the side of the fire engine[8].
Moreover, the delay by the fire engines that caused the worsening of the fire is equally to blame. The case shows that the engine had been informed on time but had delays along the way because of breakdowns caused by poor servicing. Negligence can be identified in the side of engine management as it is often expected that such an emergency response engine have been properly serviced for the purpose of effectiveness and efficiency in attending to such emergencies. This therefore implies that a tort would be identified from the side of the fire engine and as such would stand accused equally for the death of David. It was the duty of the fire engine to respond promptly to the call for such an emergency, which was not realized due to the break down along the way. The fault identified with the engine is the poor maintenance of the engine, which made it such susceptible to breaking down even in such an urgent mission. The failure to reach promptly the incident scene would be blamed to have caused the deterioration of the fire and the death of David. The harm under analysis here is the death of David by fire while in the nightclub.
In conclusion, therefore, the law of tort tries to establish the individual responsibility over such a harm suffered by an individual through an injury as well as such a death through means that would have been avoided. Unlike in criminal law, the tort holds to the tenet that human beings have own rights which must be accorded always. The failure to observe such rights leading to injury and such a death would be blamed on negligence and irresponsibility then confers compensation rights to the complainant by the accused. However, the determination of authenticity of such a claim is multifaceted and requires involvement of all parties engaged in the case[9]. For instance, in this papers case study, different parties have different responsibilities over each other and such the determination would be complicated. Harry as the club owner had specific obligation of ensuring safety to all customers besides smoking responsibly. He would also ensured safety measures are in place in the event of such an emergency. He is therefore greatly to blame for having caused the fire while smoking in his office at the back of the nightclub. Nevertheless, all parties involved have been analyzed and almost all seen to have had a specific responsibility over the death of David and the resultant depression with John.
Bibliography
Mitchell L. Yell, nd, “What are tort laws? <http://cecp.air.org/interact/authoronline/february99/1.htm>Accessed 25 November 2013.
Paul Dobso et al, Principles of conflict of laws—3rd ed—(Principles of law series) 1996. <http://abookmedhin.files.wordpress.com/2010/12/principles-of-conflict-of-laws.pdf>Accessed 25 November 2013.
Fiona Kelly, “Law 140 Law of Torts” 2008-2009. <http://www.ubclss.org/CANs/140%20Law%20of%20Torts.pdf>Accessed 25 November 2013.
“General principles of tort law” <ftp://ftp.pearsoned-ema.com/HPE_Samples/SampleChapters/9781405846943.pdf>Accessed 25 November 2013.
John Fabian Witt, “Contingency, Immanence, and Inevitability in the Law of Accidents” Journal of Tort Law, 2007, 1:2<http://www.law.yale.edu/documents/pdf/Faculty/Witt_Contingency_Immanence_and_Inevitability.pdf>Accessed 25 November 2013.
Kaplow and Shavell, “Torts” Principles of Fairness versus Human Welfare. <http://www.law.harvard.edu/programs/olin_center/papers/pdf/book/03torts.pdf>Accessed 25 November 2013.
Lunney, M. and Oliphant, K., Tort Law (5th ed., 2013), Sweet & Maxwell.
Tort Law by Kirsty Horsey and Erika Rackley 3rd edition, oxford University Press
RICHARD KIDNER -Casebook on Torts 12th edition <http://books.google.co.ke/books?id=ShRvdabboloC&printsec=frontcover&dq=Casebook+on+Torts+12th+edition&hl=sw&sa=X&ei=3ymTUt2UF5KShgfLk4CoDA&ved=0CCsQ6AEwAA#v=onepage&q=Casebook%20on%20Torts%2012th%20edition&f=false >accessed 25 November 2013.
[1] Mitchell L. Yell, nd, “What are tort laws? <http://cecp.air.org/interact/authoronline/february99/1.htm>Accessed 25 November 2013.
[2] Paul Dobso et al, Principles of conflict of laws—3rd ed—(Principles of law series) 1996. <http://abookmedhin.files.wordpress.com/2010/12/principles-of-conflict-of-laws.pdf>Accessed 25 November 2013.
[3] “General principles of tort law” <ftp://ftp.pearsoned-ema.com/HPE_Samples/SampleChapters/9781405846943.pdf>Accessed 25 November 2013.
[4] Fiona Kelly, “Law 140 Law of Torts” 2008-2009. <http://www.ubclss.org/CANs/140%20Law%20of%20Torts.pdf>Accessed 25 November 2013.
[5] Kaplow and Shavell, “Torts” Principles of Fairness versus Human Welfare. <http://www.law.harvard.edu/programs/olin_center/papers/pdf/book/03torts.pdf>Accessed 25 November 2013.
[6] John Fabian Witt, “Contingency, Immanence, and Inevitability in
the Law of Accidents” Journal of Tort Law, 2007, 1:2<http://www.law.yale.edu/documents/pdf/Faculty/Witt_Contingency_Immanence_and_Inevitability.pdf>Accessed 25 November 2013.
[7] Lunney, M. and Oliphant, K., Tort Law (5th ed., 2013), Sweet & Maxwell.
[8] Tort Law by Kirsty Horsey and Erika Rackley 3rd edition, oxford University Press
[9] RICHARD KIDNER -Casebook on Torts 12th edition <http://books.google.co.ke/books?id=ShRvdabboloC&printsec=frontcover&dq=Casebook+on+Torts+12th+edition&hl=sw&sa=X&ei=3ymTUt2UF5KShgfLk4CoDA&ved=0CCsQ6AEwAA#v=onepage&q=Casebook%20on%20Torts%2012th%20edition&f=false >accessed 25 November 2013.
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