Unintentional Torts. The majority of personal liability cases involve unintentional torts.
The basis for unintentional torts is usually negligence, so we had better have a working definition
of negligence. In order for negligence to exist, four elements must be present:
•
Duty to act.
The duty to act in a reasonably prudent manner toward another
(such as driving the insured’s car safely down the street in a manner that
avoids hitting other cars or pedestrians).
•
Breach of the duty to act.
The tortfeasor does not act in the prudent manner
described above.
•
Occurrence of injury or damage.
Another party actually must suffer an injury
or damage.
•
Negligence
. The proximate cause of the injury or damage. The tortfeasor’s
breach of duty is actually what caused the injury or damage.
If any of these elements is absent from an event, negligence does not exist and the insured will
not be held liable due to negligence. But when the required elements are present, the injured
party usually has a valid claim for damages based on negligence.
Damages is an important term to understand in any discussion of liability. When someone is
held liable for injury or property damage to another, that person can be required to pay
compensation to the injured parties. For these types of claims, we need to be concerned with
two broad types of damages:
• Compensatory damages—which simply means compensation for the loss
incurred. These may include specific damages (the documentable, actual
expenses incurred by the injured party, such as medical bills, wages lost and
property replacement costs) and general damages (monetary awards for more
subjective, less quantifiable aspects of the loss, such as pain and suffering, or
loss of consortium).
• Punitive damages—these are damages that the court can compel the
tortfeasor to pay in addition to the compensatory damages awarded. Punitive
damages represent a fine, or punishment, for outrageous, severe or intentional
conduct.
Negligence
Negligence. Failure to use that degree of care which an ordinary person of reasonable
Comparative Negligence. In some states the negligence of both parties to an accident is
established in proportion to the degree of their contribution to the accident. Several states have
comparative negligence laws, and each one varies somewhat from the others.
• Comparative Negligence. In some states the negligence of both parties to an
accident is established in proportion to the degree of their contribution to the
accident. Several states have comparative negligence laws, and each one varies
somewhat from the others.
• Contributory Negligence. If an injured party fails to exercise proper care and in
some way contributes to his or her injury, the doctrine of contributory negligence will
probably negate or defeat the claim, even though the other party is also negligent.
Contrast with Comparative Negligence.
Please see Chapter 1 addendum (Page 1-27) for examples