Tuesday, October 18, 2011

The Difference Between an Intentional Tort and Negligence

Intentional torts are a purposeful act to do harm to another. Negligence is failing to act to rectify a problem that can cause harm to an individual(s). For a claim to qualify as negligence certain elements have to be met.

The elements of negligence refer to defendant v. plaintiff. 

Element 1) the defendant owed a duty of care to the plaintiff. Duty of care refers to the obligation the people owe each other. The duty is not to cause any undue risk or harm.

Element 2) the defendant breached this duty. A breach of duty is when the person fails to exercise care in the terms of how a reasonable person would act.

Element 3) the plaintiff suffered injury. Injury in terms of damage to plaintiff’s personal property that would allow him or her to collect monetary damages from the defendant.

Element 4) negligent act by the defendant was the actual cause of the plaintiff’s injuries. The negligent act is not considered libelous unless cause can be proven. The negligent act has to be proven and is also called causation in fact.

Element 5) negligent act was a proximate cause of the plaintiff’s injuries. Liability falls on the foreseeable consequences of the defendant’s negligent act. This is a chain of events that is caused by the negligent party when the party is no longer legally responsible for the consequences of his or her actions.

Example: Stella Liebeck case against McDonalds for serving her coffee that was too hot and spilled on her causing 3rd degree burns. A jury found McDonalds negligent because their coffee was 20 degrees hotter than other restaurant competitors and McDonalds had received over 700 complaints about the coffee being too hot and scalding people. It was found that McDonalds acted recklessly by not warning their customers through labeling the coffee cups that it could burn them.

An Intentional Tort is different from negligence in the manner that it falls into a category of torts that requires the defendant having possessed the intent to do the act that caused the plaintiffs injuries. 

In other words, the McDonalds case mentioned showed negligence in failing to provide warnings to customers on hot coffee but they did not purposely harm Stella Liebeck. Let’s pretend that the McDonald’s employee took the lid off the hot coffee and threw it in Liebeck’s face – then that would be battery which is an intentional tort not negligence.

Reference: Cheeseman, Henry R. (2010). The Legal Environment of Business and Online Commerce: Business Ethics, E-Commerce, Regulatory, and International Issues, Sixth Edition. Published by Prentice Hall. Copyright © 2010 by Pearson Education, Inc.

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