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Example research essay topic: Punitive Damages Compensatory Damages - 1,967 words

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Running head: LEGAL FRAMEWORK Legal Framework [Student Name] University Affiliation PLAGIARISM REPORT 3 PERCENT QUOTES PROPERLY CITED Total Matched Phrases / Total Submitted 3 % (5 / 148) Expected Report Execution Time (peak) Abstract Negligence, in law is referred to as a breach of legal duty set forth by the law. Negligence, as tort refers to a careless act (or failure to act). Negligence leans towards behaviour or conduct rather than the bounds of a contract. In pursuing negligence litigation, the plaintiff must satisfy three general principles and for any negligence case to prosper. Duty must also be established in law. Otherwise, no restitution could be claimed despite the plaintiff incurring undue distress and injury.

There are several avenues where defendants could rebut the claims of the plaintiff. They include Act of God, Assumption of Risk, Acts of the Plaintiff and Contributory Negligence. Outline Introduction The preamble provides an overview on tort claims and damages The Essentials of Negligence Ruling This section provides the principles governing negligence ruling The Remedy of Damages in Negligence Available to Successful Plaintiffs This section explains the type of damages that plaintiffs could recover, the limits and how litigation proceeds are taxable. Defences Available to Unsuccessful Defendants This section discusses the several defence strategies that defendants use to avoid or reduce liabilities Conclusion References Legal Framework Introduction In Tort litigation, claims have two principal categories: the compensatory damages and punitive damages. They are further divided into sub-categories for tax purposes. The sub-categories include recoveries related to physical personal injuries; recoveries related to non-physical personal injuries; and recoveries for economic injuries (Jones and Luscombe, 1997, p. 10).

In English Common Law, there are no separate legal actions in tort. Instead, it allows two avenues of redress for litigants: trespass for direct injuries, and actions "on the case" for indirect injuries. (Tort law - intentional torts, breast implant lawsuits, negligence, strict liability, causation, damages, immunity, 2008) Compensatory damages could mean any of the following: loss in value, any allowable consequential damages (also called special damages), and any allowable incidental damages. (Key Concept 9: Understand the differences between compensatory and punitive damages, n. d. ) They are also considered as non-punitive damages where they compensate an injured party for the injury sustained and that make good or replace the loss caused by the wrong or injury. (State of Colorado, 1997, p. 6) On the other hand, punitive damages are awarded to plaintiffs if there was malicious intent on the part of the defendant. Punitive damages are defined as [d]ages awarded over and above the amount necessary to compensate an injured party for the actual loss. The damages has been given as punishment for the willful and fraudulent behavior. (State of Colorado, 1997, p. 6) Punitive damages are not intended to compensate Tort victims. Instead, they are designed to punish wrongdoers and act as deterrent to other future flagrant disregard for inappropriate behavior.

It is often reserved for the worst case of misconduct (Key Concept 9: Understand the differences between compensatory and punitive damages, n. d. ; Palmer, 1995, 596 +). Punitive damages can be awarded in the context of personal injury or non-personal injury. It is also intended to serve as a social purpose (p. 596 +). The Essentials of Negligence Ruling The Tort has French origins dating back to the Fourteenth century. The term Tort was derived from the Medieval Latin term torture literally translated to mean something twisted (Smellie, 2002).

It is a civil as opposed to criminal injury arising from an act or failure to act. Hence, damages and liabilities could be brought as a consequence of the act or failure to act. This is separate from the requisites of a contract (Smellie, 2002). Negligence, in law is referred to as a breach of legal duty set forth by the law. Negligence, as tort refers to a careless act (or failure to act). Negligence leans towards behaviour or conduct rather than the bounds of a contract.

Smellie (2002) described the overlap between negligence and several torts, and negligence and contract. An interest or agreement may be breached as a consequence of negligence. Smellie (2002) cited the example of building contracts where negligence could be attributed to the inability to fulfill the statutes of a contract. The requisites of a negligence tort require that three of these conditions should be present. First, careless conduct must be present. Second, there must be a cause and effect relationship between the conduct and damage Finally, there are foreseeable circumstances that the conduct could potentially cause damage or harm to another (Smellie, 2002; Kelley and Wendt, 2002, pp. 595 - 600).

A tort negligence is committed when there are mitigating circumstance to show that there was careless conduct and dereliction of duty as the law recognizes it. Without duty being established in law, one cannot claim any restitution or damages even the act has caused undue distress or injury to the plaintiff. Both duty and the three conditions of negligence must be established. Thus allowing the law to set forth the considerations and extent to be meted to the defendant when found culpable. Each case may require different sets of proof of negligence depending on the nature of the injury and the law by which the act or duty falls under. In cases where mechanical failures or vehicular malfunction are involved, certain proof of negligence must be established before any claims could be made.

The mere fact that an accident had occurred is not enough to establish legal liability. Biggs (n. d. ) cited that it is the plaintiff that bears the burden of proof by preponderance of evidence. (p. 7) In cases where mechanical failure was found to be the cause of injury to the plaintiff, the courts require four essential elements of proof. The failure to prove any one of these elements will weaken the case (p. 7). Establishing proof of negligence is foremost in establishing liability.

Other elements of proof required in determining liability in mechanical failure include: the establishment of a legal duty or standard of care, a breach or violation of that duty, the showing by a preponderance of the evidence that the breach or violation proximately caused injury. (p. 7) In establishing legal duty of the defendant in these cases, the different laws and regulations in place provide an adequate point of reference to begin the investigation. Some case laws also provide more stringent standards of care in many cases. A tort happens when someone injures you physically, damages or misuses your property, attacks your reputation without justification or takes away your liberty and freedom of action without just cause. To recover damages for a tort, you must prove either that the act was committed with deliberate intent (as when someone circulated a letter calling you a thief) or that it was the result of negligence (as in the case of the driver in the parking lot who carelessly hit your car when he has a duty to drive carefully. (Public Servant Immunity & Tort Law).

In most cases, you must prove that the act inflicted actual damage or injuries. A malicious act that does you no harm, such as a threat to punch you in the nose or a shove in a crowded subway, is not a sufficient cause for legal action. Nor are you likely to recover damages from a neighbor when the healthy-looking elm tree in his yard crashes down on your roof in a windstorm. The crash was not something he intended, nor was it the result of his negligence. (Public Servant Immunity & Tort Law). A person who is proven to have committed a tort will be held responsible for all the damages proved to have resulted from his act.

A motorist who sideswipes your car, causing you to swerve and hit a pedestrian, is responsible in damages both to you (for the injury to your car) and to the pedestrian (for his dental expenses in replacing the false teeth knocked out when your car hit him). A mugger who attacks you on the street, leading you, in defending yourself, to raise your umbrella so quickly that you hit a passerby, is responsible both to you (for the shock to your nervous system) and to the passerby (for the cost of stitching up his scalp). He is also guilty of a crime and can be arrested and prosecuted. (Public Servant Immunity & Tort Law). In a larger picture, negligence is "the failure to use ordinary care" through an act or omission. It occurs when a person does not exercise care or when an individual does something that a reasonably careful person would not do under the situation. This is often done in personal injury lawsuits.

For instance, a personal injury lawsuit arising out of a car accident case is most often based on the premise that the defendant was negligent. (Larson, 2003). Meanwhile, proximate cause happens when the plaintiff is injured because of negligent conduct, and the plaintiff's injury may have been a natural and probable result of the negligent conduct. A defendant is liable if the plaintiff has established both negligence and proximate cause. The law points to the defendant's conduct as being "a proximate cause" of an accident, as opposed to "the proximate cause." In most situations, many accidents have more than one proximate cause.

It is not necessary for liability that the defendant's negligence be either the only proximate cause of an injury, or the last proximate cause. A defendant can be liable even where an injury has multiple proximate causes. Also he can be liable whether those causes occur at the same time or in combination. A plaintiff may can bring a cause of action against two or more defendants when he is able to prove that the acts of each were proximate causes of the plaintiff's injury, even if the defendants' negligent acts were distinct. (Larson, 2003).

An example of this proximate cause is when a plaintiff is driving down the road, and is suddenly cut off by another individual on a side street. The plaintiff is able to slam on her brakes just to avoid striking that car. However, the plaintiff, because of that move, is rear-ended by another driver who was not attentive to the events in front of his car. The plaintiff in this case brings an action against both drivers. This is so because the one who cuts her off and the one who rear-ended are liable because their negligent acts were both proximate causes the injuries she got even if both were not connected directly to each other.

In evaluating negligence, there is a requirement that a plaintiff must prove that the following four factors by a "preponderance of the evidence": The defendant owed a duty to the plaintiff; The defendant violated that duty; As a result of the defendant's violation of that duty, the plaintiff suffered injury; and The injury was a consequence of the defendant's action or inaction. (Larson, 2003). In some instances, the negligence per se may be used to establish negligence as a matter of law. The negligence per se doctrine states that it is not necessary to determine what a reasonably prudent person would have done under the circumstances. The case is reviewed based whether the defendant violated some regulations or statutes or not (Biggs, n. d. , p. 10). In negligence per se cases, the courts now determine two threshold inquiries: one that determines whether the plaintiff belonged to the class that the statute that intends to protect and the other determines the type of injuries sustained was the one that the statute intended to prevent (p. 11).

The doctrine of res ipsa loquitur or the thing speaks for itself is also applied in negligence cases. The doctrine examines...


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Research essay sample on Punitive Damages Compensatory Damages

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