6 - TORT LAW'S BASIC LEGAL PREMISES

Abstract

This chapter discusses some major legal concepts, premises, and major liability rules related to tort law and the doctrine of proximate cause. A tort is a civil, seldom a criminal, wrong. When such a wrong occurs, usually one party unintentionally destroys another party's initial entitlement by imposing a negative externality on him. Then, the courts can provide a remedy in the form of damages. Tort law has a price-system rationale. Individual tortfeasors may meet their tort duties for a price, for an appropriate compensation. Therefore, if enterprises unintentionally injure individuals, they are not prohibited from operating; they need only pay compensation for the breach of their tort duty. The tort of negligence is probably the most commonly known tort. It involves a failure to exercise the care of an ordinary prudent and careful person. The question of actual negligence is almost always factual, requiring a jury determination. A key issue in determining liability relates to the defendant's conduct: Has it been such that under the same or similar circumstances a reasonable man would not have caused the resulting injury? Thus, would the conduct of a reasonable man have avoided the ensuing harm? One essential element of negligence is the demonstration of a duty. It relates to a person's responsibility not to destroy another person's initial entitlement. The defendant who owes no duty to the plaintiff cannot be negligent.