Sample Essay on Types torts Chris should apply & what he should allege

Business Law

Types torts Chris should apply and what he should allege in the lawsuit

A tort can be defined as some civil wrong from which a person may obtain remedy mostly in the form of damages (that is, the aggrieved party is compensated for any damages or injuries suffered). In tort actions, three elements must be present for the plaintiff to be compensated for the injuries or damages created by the defendant. The three elements include actions by the defendant, the plaintiff’s position in the case and confrontation from the jury. While the defendant stands the chance of declining the case, the plaintiff must prove that the defendant actions did not conform to the duty and terms of agreement as outlaid in the contract (Luntz, Hambly, & Hayes, 2011, p. 168).

The types of torts Chris could apply in his case

Negligent tort

These refer to careless conducts resulting in damages to another party and involve some specific codes of conduct, which every individual is required to adhere to, and a legal duty of the public to act in specified ways that reduces the risk of possible harm to others. In proving there was negligence, each party to the lawsuit must possess a duty to practice due care (refers to the degree of care a reasonable person would practice under the said situation) as frequent as possible (Luntz, Hambly, & Hayes, 2011, p. 183). In law, a reasonable person refers to that imaginary prudent individual taking the necessary precautions to avoid any form of harm to themselves, others or even properties.  Under breach, the standard of care is determined, that is, whether the defendant followed the particular standard of care, for instance in the case of Chris, the hotel attendant warned him about the parking lot surface, but had the duty to clear the ice and snow from the sidewalks and parking lot(Luntz, Hambly, & Hayes, 2011, p. 197).

Any failure to adhere to such standards amounts to negligence and the injured party can sue the defendant and adequately pursue for damages. Negligent act is deemed preventable and do not involve deliberate actions to harm or cause loss to any individual or property (Luntz, Hambly, & Hayes, 2011, p. 209). The hotel owners in the case of Chris failed to act as any reasonable person would and out of negligence decided not to treat the sidewalks in the parking lot, which was covered with several inches of ice and snow. As a result, Chris who was a visitor at the hotel slipped on the ice and suffered a broken arm that required surgery (Luntz, Hambly, & Hayes, 2011, p. 218). It was the responsibility of the hotel owner to make all the hotel premises safe for its customers and that meant clear marking of any hazards and cleaning up spills as quickly as possible. Chris was a victim of hotel negligence of duty and is entitled to due compensation for the injuries he suffered as a result (Luntz, Hambly, & Hayes, 2011, p. 207).

Strict liability tort

This is a special kind of liability applied in a situation where the activity is quite dangerous and the defendant automatically become liable in case of any injury (Schäfer, & Müller, Langer, 2009, p. 87). A sidewalk and parking lot full of ice and snow is an instant danger and the hotel is strictly liable for the injuries Chris suffered.

Proving the torts elements by the plaintiff (Chris)

Chris was walking on the sidewalks of the hotel parking lot when he fell and suffered dire injuries. In this case, the hotel owner owed anyone walking on the sidewalks and the parking lot a duty of care, that is, the ice and snow that covered the floor should have been cleared promptly (Luntz, Hambly, & Hayes, 2011, p. 229). The defendant (hotel owner) should have applied reasonable care that the ice and snow on the sidewalks were to be cleared on time to prevent any possible slip up of a visitor or even their staff.  Chris was injured because the defendant’s negligence in cleaning the ice appropriately and on time and is solely responsible for his injury (Luntz, Hambly, & Hayes, 2011, p. 237). This is a prima facie case as the evidence of actual injury is strong enough to convince the court the defendant suffered the injuries because of the defendant’s inactions and is likely to rule in the favour of the plaintiff (Luntz, Hambly, & Hayes, 2011, p. 245).

In this case, pitting Chris and the hotel owner, the defendant (hotel) had a legal duty to act in a particular way, which in this case which was to clear the ice and snow from the parking lot sidewalks (Luntz, Hambly, & Hayes, 2011, p. 264). Similarly, it against the hotel policy to assign rooms that were at the far end of the hotel in inclement weather, but the hotel clerk decided to assign Chris the room all the same. In this case, the defendant breached its duty to act by failure to appropriately clean the ice and snow, which were clear hazards to the customers and led to Chris’s injury. Notably, the defendant failed to provide a proper standard of care to its customer, and this is negligence on the part of the service provider according to the law of torts (Luntz, Hambly, & Hayes, 2011, p. 271). The plaintiff (Chris) suffered an injury as a result of this breach of duty of care by the defendant, and this negligent act by the defendant clearly proximate the cause of the plaintiff’s injury and therefore, the court is likely to award damages to Chris who is the plaintiff (Luntz, Hambly, & Hayes, 2011, p. 283).

 

The hotel (defendant) defences

The defendant can provide evidences showing that it did not owe a duty to act to the plaintiff. The evidences should illustrate whether the defendant provided all the required standard of care, or whether the defendant’s actions did not result in the injury the plaintiff suffered (Luntz, Hambly, & Hayes, 2011, p. 294). Similarly, the defendant can reduce the amount to be compensated by providing evidences showing that the plaintiff contributed to the injury incurred. The burden of proof, therefore, lies with the defendant who must prove that negligence was contributory in the sense that both the plaintiff (Chris) and the defendant (hotel) contributed to the injuries inflicted on the plaintiff and the plaintiff to prove that the defendant owed him a duty of care and breached this duty. As much as the defendant owed the plaintiff duty of care, the hotel clerk had cautioned Chris (plaintiff) that the parking lot and the sidewalks were untreated and advised him to walk carefully (Luntz, Hambly, & Hayes, 2011, p. 311). The plaintiff instead chose to ignore this amounting to contributory negligence on both parts of Chris and the hotel owner. Chris did not act in manner deemed reasonable when he decided to walk across the sidewalks and parking lot covered with ice and his action was proximate and legal cause of his injury (Luntz, Hambly, & Hayes, 2011, p. 319).

Similarly, the defendant in its defense can apply the principle of voluntary assumption of risk. This means that the plaintiff knew the potential risk of walking on the sidewalks and parking lot that was full of ice and snow, and yet he willingly assumed this and as a result suffered an injury. The doctrine of assumption of risk can be explained in a number of ways; first, that the plaintiff (Chris) formally entered into an agreement with the defendant (hotel clerk) before venturing into the potentially risky situation and this will considerably reduce the liability of the injury the defendant could have bared.  The plaintiff had personally requested to be assigned the room at the far end of the hotel against the advice of the defendant (Luntz, Hambly, & Hayes, 2011, p. 316). Second, the plaintiff entered into the agreement with the defendant knowing very well the defendant could not protect him from the known risky situation, but still ventured into it. Last, the plaintiff could have acted duly in the face of the risky situation after the defendant had explained to him when he had the opportunity to do so and could have left for a safer hotel in the vicinity but failed to do so (Luntz, Hambly, & Hayes, 2011, p. 326). Moreover, the hotel will assert that it did not owe Chris a duty to care and will base this on the fact that as much as the hotel staff owed high standard of care to their clients, it did not expand this duty of care to clients traveling in the storm.

Similarly, strict liability cannot be claimed or proved on the defendant as the plaintiff was cautioned about the looming dangers and willingly chose to ignore (Schäfer, & Müller, Langer, 2009, p. 102).

Conclusion

Depending on how the court rules, if the plaintiff is proved to have contributed to his injury, the reward will be reduced by the same amount of contribution he made to his own injury (Luntz, Hambly, & Hayes, 2011, p. 351). However, even if the defendant was found guilty of being negligent through breach of standard of care, the plaintiff will still be subjected to contributory negligence and the hotel stands better chances of winning the case (Luntz, Hambly, & Hayes, 2011, p. 351). The court must strike a balance between whether to promote corrective justice or remedy wrong doings and not contribute in creating an overly litigious community, which believes in remedying of any misfortune (Luntz, Hambly, & Hayes, 2011, p. 351).

References

Luntz, H., Hambly, D., & Hayes, R. A. (2011). Torts: cases and commentary (p. 152-367). Butterworths.

Schäfer, H. B., & Müller, G.H. ,Langer, F. (2009). Strict liability versus negligence. Available at SSRN 2062787.

 

 

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