Tort law in the American civil justice system covers intentional or negligent conduct causing harm to another. Negligence involves failing to exercise reasonable care, and defendants can use affirmative defenses such as risk-taking or contributory guilt. Comparative negligence may also be used to reduce damages awarded.
In the American civil justice system, tort law refers to situations in which the tortious conduct of one party causes harm to another. Illicit conduct recognized by law can be based on intentional or negligent acts. Examples of intentional torts are defamation, assault or battery, fraud, and interference with another party’s contractual or beneficial relationship. A tort of negligence refers to those circumstances in which the law will hold a person who has a duty of care to another person liable for any harm which her negligence may have caused to the injured party.
A tort of negligence can be defined as the failure of an individual to exercise reasonable care to protect themselves both from risks which it was known to cause possible harm, and from those which an individual ought to have known would create an unreasonable risk of harm to a third party. To prevail in a tort action by negligence, the plaintiff must prove, by a preponderance of evidence, that the defendant was negligent or failed to exercise due care in the circumstances. The plaintiff must also prove that the defendant’s negligence caused his injuries and that he suffered appreciable injury or damage as a result. Malpractice encompasses a variety of lawsuits, including personal injury, medical malpractice, and product liability lawsuits.
There are several affirmative defenses a defendant can raise against a malpractice claim. The two most important are risk-taking and contributory guilt. Assumed risk is a defendant who claims that the plaintiff knew of the risk or danger, but still acted recklessly, such that any injuries sustained cannot be considered to have been caused by the defendant. Examples could include reckless behavior in the face of a known hazard, such as smoking near a gas station or using a metal ladder near power lines.
A defendant may plead concurrence as a defense if the plaintiff’s negligence was the proximate cause of his injuries. Examples might include a plaintiff who is involved in an automobile accident but was intoxicated at the time of the accident. A finding of concurrent negligence by a jury can act to defeat the plaintiff’s tort claim of negligence. In some jurisdictions, the common law doctrine of concurrent negligence has been replaced by a statutory scheme of comparative negligence. Under the theory of comparative negligence, a jury will assess – on a percentage basis – the amount the plaintiff was liable for their injuries and any damages awarded will be reduced accordingly.
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