Negligent Tort

Welcome to week 2!  This week deals with crimes that harm business versus crimes committed by business, product liability and negligent torts. This week’s assignments include reading chapters 6-8 of the textbook, two (2) discussion board questions, and an assignment. As for the discussion boards, I expect you to post your initial posting by Thursday and respond to at least two (2) of your classmates posts.  As for the discussion questions, you can use your textbook as a reference as well as other outside academic references.   The rubic for the discussion boards can be found in the class room.  Please email me with any questions. 

Criminal law is the branch of law that concerns itself with the punishment of prohibited behavior seen as harmful to society as a whole. In every society, criminal law is the primary method through which the government imposes standards of behavior for its citizens as a means of preventing antisocial behavior and maintaining order for society.  A violation of a statute of law is a crime (Liuzzo, 2013).  There are two (2) elements to every crime that the prosecution must prove before a criminal defendant can be found guilty of having committed a crime: (1) a criminal act or omission by the accused and (2) the existence of a wrongful state of mind or intent at the time of the commission of the wrongful act or omission (Johnson, 2000).  Typically, crimes are been classified into three (3) basic categories based upon their seriousness: felonies, misdemeanors, and violations (Johnson, 2000).   Felonies are the most serious crimes and are punishable by more than one year's imprisonment in a state or federal penitentiary or a death sentence (Liuzzo, 2013).   Misdemeanors are less serious criminal offenses that can carry a maximum penalty of one year's imprisonment and/or a fine (Liuzzo, 2013).   Violations are minor offenses that typically are punishable by a fine or short prison sentence of 30 days or less.

Tort law encompasses a body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. A tort is a violation of the rights of an identifiable individual or business that has been wronged either intentionally or by negligence (Liuzzo, 2013).   The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.  There must be three (3) elements established in every tort action. First, the plaintiff must establish the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate  the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove he suffered injury or loss as a direct result of the defendant's breach (Liuzzo, 2013). 

Negligence is considered conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. By definition, negligence is the failure to exercise reasonable care necessary to protect others from risk of harm (Liuzzo, 2013).  A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.  In order to establish negligence as a cause of action under the law of torts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. Therefore, there are four (4) elements for a negligence claim. 

           Product liability is considered the responsibility of a manufacturer or vendor of goods to compensate for injury caused by defective merchandise that it has provided for sale (Liuzzo, 2013).  When individuals are harmed by an unsafe product, they may have a cause of action against the persons who designed, manufactured, sold, or furnished that product. In the United States, some consumers have thought of the rapid growth of product liability litigation as an effective tool for Consumer Protection. The law has changed from caveat emptor which means “let the buyer beware" to strict liability for manufacturing defects that make a product unreasonably dangerous. Manufacturers and others who distribute and sell goods argue that product liability verdicts have enriched plaintiffs' attorneys and added to the cost of goods sold. Businesses have sought Tort reform from state legislatures and Congress in hopes of reducing damage awards that sometimes reach millions of dollars.  In order to sustain a production liability case, the plaintiff need to prove four (4) elements:  duty, breach, proximate cause and damages (Liuzzo, 2013).  Last, in most jurisdictions, a plaintiff's cause of action may be based on one or more of four different theories: negligence, breach of warranty, misrepresentation, and strict tort liability.  As discussed above, negligence refers to the absence of, or failure to exercise, proper or ordinary care (Liuzzo, 2013).   It means that an individual who had a legal obligation either omitted to do what should have been done or did something that should not have been done. Breach of warranty refers to the failure of a seller to fulfill the terms of a promise, claim, or representation made concerning the quality or type of the product (Liuzzo, 2013).   The law assumes that a seller gives certain warranties concerning goods that are sold and that he or she must stand behind these product assertions (Liuzzo, 2013).   We also have the claim of misrepresentation for product liability. Misrepresentation in the advertising and sales promotion of a product refers to the process of giving consumers false security about the safety of a particular product, ordinarily by drawing attention away from the hazards of its use. An action lies in the intentional concealment of potential hazards or in negligent misrepresentation. Last is a claim for strict liability for product liability cases. Strict liability involves extending the responsibility of the vendor or manufacturer to all individuals who might be injured by the product, even in the absence of fault (Liuzzo, 2013). 

            However, there are several defenses to product liability cases. One such defense that I would like to review is assumption of risk.  Assumption of risk is a defense is which the defendant can demonstrate that the plaintiff voluntarily assumed the risk associated with the dangerous condition caused by the defendant.  A great example of such a defense is a plaintiff’s use of fireworks.  A manufacturer of fireworks would defend the action by stating the plaintiff assumed the risk of using fireworks.