Tort laws in the working world|
Rasmussen CollegeNovember 04,2012Authors Note:|
This research is being submitted on November 04, 2012, for Larry Cooperman FAL12-6WS1-B371-04 Research and Report Writing course. |
Have you ever seen the commercials for a lawsuit based on a disease cause from working with asbestos or heard of law suit for unlawful termination; these are tort laws that make these lawsuits happen. The definition of a tort law is a civil wrong doing, what exactly is a tort law and how does it affect people and businesses, this research is to break down the definition and give a clear understanding of what tort laws are for and why they are used. The Federal Tort Claims Act sets forth the government’s waiver of sovereign immunity and allows the United States to be sued in torts for the acts of its agencies and employees. There are procedural differences in litigating a claim under the FTCA. The distinctions are important due to one being jurisdictional and that there are substantive exceptions to the limited waivers. In all tort cases the plaintiff must prove that they are owed. The plaintiff and the court must look at the law of the place where the occurrence is to determine if an actionable duty has raised and there is indeed a need for the suit. Under tort principles the investigation must be carried out as to where the occurrence happened. (Carmody, 1995) Tort laws are laws that offer remedies to individuals harmed by the unreasonable actions of others. Tort claims usually involve state law and are based on the legal premise that individuals are liable for the consequences of their conduct if it results in injury to others. Tort laws involve civil suits, which are actions brought to protect an individual’s private rights. There are two major categories of torts typically seen in employee-related cases: intentional and negligence. (CECP.air.org, 1999) Intentional torts are usually offenses committed by a person who attempts or intends to do harm. For intent to exist, the individual must be aware that injury will be the result of the act. A common type of intentional tort is assault. Assault refers to an overt attempt to physically injure a person or create a feeling of fear and apprehension of injury. No actual physical contact need take place for an assault to occur. Battery, on the other hand, is an intentional tort that results from physical contact. (CECP.air.org, 1999) The second type of tort seen most frequently in employment related cases is negligence. The difference between negligence and an intentional tort is that in negligence the acts leading to injury are neither expected nor intended. Employees who bring negligence claims must prove that employer personnel should have foreseen and prevented the injury by exercising proper care. Accidents that could not have been prevented by reasonable care do not constitute negligence (CECP.air.org, 1999) There are four elements that must be present for negligence to occur: (1) the employer must have a duty to protect employees from unreasonable risks, (2) the employer must have failed in that duty by not exercising a reasonable standard of care, (3) there must be a causal connection between the breach of the duty to care and the resulting injury, and (4) there must be an actual physical or mental injury resulting from the negligence. In a court, all four elements must be proven before damages will be awarded for negligence. (CECP.air.org, 1999) There is a typical inquiry to determine if an accident occurred under tort law principles. The questions that follow are typical but not limited to: Whether a relationship existed between the actor and the injured party, the nature of that relationship; whether that relationship created is an actionable duty; whether that duty was breached; and whether that breach caused the plaintiffs injuries. A conflicts analysis is then needed to determine...