A Brief Overview of Tort Law

Introduction  
A tort is a civil breach committed against another in which the injured party can sue for damages. In personal injury cases, the injured party will attempt to receive compensation with the representation of a personal injury lawyer in order to recover from damages incurred. Tort law decides whether a person should be held legally responsible for injury against another, and what type of compensation the injured party is entitled to. There are four elements to tort law: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts. Intentional Interference with a Person All tortuous charges of intentional interference with person/property involve intent, which provides for a civil wrong, knowingly committed by the offender.  This contrasts with torts of negligence, which results from lack of concern or responsibility on behalf of the offender.These damages are dealt with through civil litigation. Defenses to Intentional Interference with Persons When a plaintiff accuses a defendant of an intentional tort, it is the defendant's responsibility to identify any justifications for his actions that may excuse him from liability. In tort law, there are several privileges that a defendant may apprehend, in order to avoid liability. It is up to the courts to determine whether the defendant's privilege excuses him from liability. They need to conclude on whether the defendant had consent, permission by the plaintiff, or whether the plaintiff was defending himself, his property, or another person. If the defendant is able to establish privilege, then it is said that he has not committed a tortious act and will not be held liable. Negligence: Standard of Conduct There are certain elements that are required to prove that a defendant acted negligently. There is a specific code of conduct which all people are expected to follow and there is a duty of the public to act in a certain way, which reduces the risk of harm to others. Negligence can only be claimed by an injured plaintiff, whose interests have actually been interfered with. This portrays that a plaintiff must prove his injuries, and prove that they were caused by the defendant. This proximate cause is the link between the defendant's actions and the plaintiff's injuries. There is a statute of limitations in negligence cases, however, there are several rules, such as discovery and continuing negligence, which may excuse a plaintiff from the statute of limitations. Negligence Proof The necessity for a negligence case to be tried in a court of law is essential and evident. Tort law, like any other law, is tough to decide upon when an enforcement or violation issue arises, and is furthermore tedious. In negligence cases, a court appoints a jury to make a decision upon a case based on the direct or circumstantial evidence that is available to them. The burden of proof a plaintiff faces in a case, relates to four elements of proof that must exist in order for them to be able to prove that a negligent act not only existed, but the fact that the act by a defendant, led to the injury sustained by the plaintiff.  Proximate Cause The name given to the direct cause of an accident, or incident leading to injury, is referred to as 'proximate'. The term proximate has long been known to mean near, or in the vicinity of, not actual. This gives a misconception to the name, as if the cause was nearly opposed to the actual one. Other issues arise deeper within proximate cause, and that is with the scope of liability and its extent. Controversy exists as to where liability should be extended to a defendant, based on their responsibility or duty. Joint Tortfeasors Joint tortfeasors, seen as equally liable for the committing of a tort, usually can be combined under one indictment. This is known as a "joinder of defendants". In a case similar to this, one significant reasoning behind its institution besides the commonality that the defendants share in their joint action, is that of "judicial economy." In reference to this term, the court is making the decision that placing all defendants under one sole indictment will be the most appropriate option in terms of efficiency and, ultimately, cost-effectiveness for the judicial system itself. Due to the mounting quantities of cases arising daily, this practice is employed as a worthwhile alternative, especially when an occasion such as that of joint tortfeasors comes about. Limited Duty In legal terms, duty is seen as an individuals obligation to act in a manner conducive to the well being of everyone around them, such as the prevention of any "foreseeable injury to a victim." Such a term that best represents this obligation is that of a "duty of care", or even "good Samaritan" to an extent. Duty, itself, serves two other important functions for societal concerns attached to tort law. These include a "general principle" and a "limitation." A general principle provides a precedence for future cases, while limitation sets forth the "boundaries" for which liability may exist for individuals involved in an incident. Actual application of this term comes in the form of its existence at the "abstract level" and "in fact or problem". Owners & Occupiers The concerns for areas outside of the premises of a given property deal with the condition of such a property. This is in direct regards to certain factors and attributes such as structural or fixtures on the property that could have an effect on the immediate areas surrounding it. The term trespassing adults refers to any person who has been found to be entering, occupying, or traveling through a property that is owned by someone else, without their permission or consent. Licensees are persons that are given a license, as a form of permission, to enter a property lawfully. Such persons are to enter the property for a reason that does not have to be in the best interest or benefit of the owner. By being granted the license to enter and occupy such property, this individual is exempt from trespassing status, and is completely abiding by the law. Negligence- Defenses Contributory negligence is one of the most commonly used negligence defenses. The defendant attempts to deny the plaintiff the right to action, by claiming that the plaintiff's own negligence played a large role in his injuries. In contributory negligence, both parties are guilty of negligence, but the plaintiff is not awarded any damages. The last clear chance rule is an exception to the contributory negligence defense which permits the plaintiff more freedom in taking action against a defendant when the plaintiff is also guilty of negligence. The last clear chance refers to an instance where the defendant had the last clear chance to avoid injuring the plaintiff, but did not take the opportunity. In cases where both the plaintiff and the defendant are both guilty of some degree of negligence, contributory negligence places liability solely on the plaintiff. Imputed Negligence Vicarious liability represents a venue in which individuals may be "vicariously" held accountable for the actions of individuals other than themselves. In these cases, the ones held liable are those who have some type of legal claim to the actual individuals at fault. Two such persons may be parents to mischievous children or employers to careless employees, as well as a guardian. In each circumstance, the liable individuals are taking the place of others. A joint enterprise is described as an action, which involves two or more individuals, usually with monetary considerations involved. Additional elements which comprise it include a common goal as well as concurrent rights to take the lead of the operation. Strict Liability The basic structure that encompasses that of strict liability is the fact that liability is maintained despite any intent otherwise. In this way, it matters only that the action was performed to its fruition and an eventual injury of another. Certain areas in which safety laws have had to come to the forefront concerning liability include incidents involving product defects. In cases such as these, consumers must only prove that their injuries stemmed directly from the product in question in order to garner an appropriate judgment from the court. The purpose behind such a seemingly rigid form of legislature is to prevent future occurrences from happening by providing precedence to fall in line with. Compensation Systems In tort cases, victims often receive compensation, including monetary judgments. However, some judgments include other factors such as: the accused, publicly admitting guilt. In most jurisdictions, the courts have placed limits, or judgment ranges, which depend on specific factors found in the case. In most cases, victims that sustain injuries receive a judgment which maxes out, regardless of how painful and permanent the injury may be. However, the courts can award other judgments, in addition to the one made for specific bodily injury. Nuisance In modern tort law there are different types of nuisances: public, private, and absolute. A private nuisance effects one individuals enjoyment of his land, while a public nuisance effects a larger amount of citizens, or the public in general. Absolute nuisances are nuisances for which the defendant is strictly liable. The simple form of nuisance is described as an act which takes away from rights to the use, and enjoyment of land that every owner has. Products Liability Products Liability is a field of tort law which concerns the responsibility of the manufacturer or vendor of a product to ensure that products are safe and do not cause injury. Products subjected to liability include all consumer goods, medical devices, commercial/personal vehicles, aircraft and consumable goods such as food and prescription drugs. As it is the duty of a product vendor or manufacturer to produce/supply a product which will not cause harm during normal use, manufacturer/vendors of unsafe products are subject to recovery for damages. Misrepresentation & Nondisclosure Misrepresentation and nondisclosure form two fundamental bases for many actions represented under tort law. Any case where false or hidden information plays a significant part, essentially implies a standard of care that reflects the negligence addressed by tort.   To phrase it more simply, the fact that information has been withheld or misrepresented directly implies a negligent situation. This means that among the various subsections of tort law, cases of misrepresentation and nondisclosure can prove to be the easiest to form a legal consensus of opinion on whether negligence has happened, due to the very idea that the act itself is a negligent action.  Misrepresentation and nondisclosure can take many forms, but generally they refer to an act or service. they are usually rendered for compensation that do not fulfill their terms of promise, either because they misrepresent their ability to perform, or fail to disclose elements that prevent adequate performance (like a unknown side effect for a product, or a conflict of interest in a case of service).   There are many remedies one may seek when a case of misrepresentation can be seen to have occurred, though the extent to which they fall under tort law or other forms of legal action are highly dependent on the specific legal system, as well as the nature of the misrepresentation.  In nearly all cases, there is an obligation on the provider of a product or service to provide information either by law, or by request, so as to adhere to all legal standards of accurate representation. Defamation The term defamation refers to an abusive attack on a person's character or to make false claims against someone in order to damage their good name. There are two forms of defamation that can be used: libel and slander. An unreasonable person may abuse the right of privilege in order to commit defamation against another person. The right of privilege (or "qualified privilege")  being that a person has a right to make statements during the trial process. This privilege often protects against an unreasonable person who wishes to make defamation statements.      Misuse of Legal Procedure Misuse of Legal Procedure is a series of torts that involve the corrupt or undue filing of litigation for unlawful reasons. Public right of access to courts is granted on good faith that claimants will act with probable cause and honesty. Conversely, when a plaintiff in a lawsuit is found to have initiated legal action for purposes of deliberate harassment or inconvenience of the defendant, or when the court terminates the suit in favor of the defense, the defense may seek damage compensation for losses incurred in the legal process. These losses may be qualified under charges of Malicious Prosecution, Wrongful Civil Proceedings or Abuse of Process.  Domestic Relations  Domestic Relations is an evolving area of Tort Law which deals with a family's inner workings. The evolution of Domestic Relations Tort has not only shaped the way that family's may collect for damages or interference to the family unit itself resulting from tortious conduct; it has shaped the way husbands, wives, children and legal guardians are viewed as legal entities. Originally, under common law, children and wives were treated as chattels and functioned under a man's proprietary rights. In the 1900's, several advances in Family Law provided for the legal rights of women and children to act as distinct legal entities from their husbands/fathers.  Survival & Wrongful Death Survival and Wrongful Death are tort claims made after the death of an individual in an at-fault situation. This means that the deceased must be victim of a tort, before death or at the time of death. Survival actions are raised by the executives of the victim's estate, and are continuations of tort actions that the victim would have been entitled to raise in life. Wrongful death claims are made by surviving dependent's for the loss of the decedent's contributions to their lives. Economic Relations Torts of Economic Relations are allegations of direct interference with business relationships, agreements, or prospects, which result in quantifiable losses. When suing for Torts of Economic Relations, it is important that the plaintiff be able to prove that the defendant acted intentionally with knowledge of his or her own actions, and that the subsequent actions were injurious to the claimant in the form of economic losses. Torts of Economic Relations normally fall under classifications of Interference with Contractual Relations, Interference with Prospective Advantage or claims of Injurious Falsehood. Immunities In tort cases, there are certain intervening factors which allow individuals immunity, from their actions. Immunity implies either, that the person could not understand the risks associated with their actions or that they can not be held liable because they were acting on behalf of the government or other entity. Cases in which individuals are not likely to understand the possible outcomes of their actions, include infant immunity or insanity immunity.  Infant immunity applies to minors that are too young to grasp the consequences of their actions. In addition, the minor must not have no intent to cause harm to person or property. It can not be claimed that the minor did not understand the consequences of their actions, if they intended the negative consequences that resulted from their actions. Intent can not be present without an understanding of possible outcomes. In cases that involve infant immunity, the parents or guardians of the minor, could be held liable for their actions, regardless of the minors understanding of the possible outcomes of those actions. Insanity immunity can be utilized as a defense in cases where a person is deemed insane, or mentally incapable of understanding the possible outcomes of an action. In cases where insanity immunity is a factor, the caregiver of the person that acted in manner which caused a negative outcome, could be held liable in the same manner that a parent or guardian could be liable for a minor. In either case, the actor and those responsible for the care of the actor, could both be held liable for the action.

A Brief Overview of Tort Law

Introduction 

A tort is a civil breach committed against another in which the injured party can sue for damages. In personal injury cases, the injured party will attempt to receive compensation with the represantation of a personal injury lawyer in order to recover from damages incurred. Tort law decides whether a person should be held legally responsible for injury against another, and what type of compensation the injured party is entitled to. There are four elements to tort law: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts.

Intentional Interference with a Person

All tortious charges of intentional interference with person/property involve intent, which provides for a civil wrong, knowingly committed by the offender.  This contrasts with torts of negligence, which results from lack of concern or responsibility on behalf of the offender.These damages are dealt with through civil litigation.

Defenses to Intentional Interference with Persons

When a plaintiff accuses a defendant of an intentional tort, it is the defendant's responsibility to identify any justifications for his actions that may excuse him from liability. In tort law, there are several privileges that a defendant may apprehend, in order to avoid liability. It is up to the courts to determine whether the defendant's privilege excuses him from liability. They need to conclude on whether the defendant had consent, permission by the plaintiff, or whether the plaintiff was defending himself, his property, or another person. If the defendant is able to establish privilege, then it is said that he has not committed a tortious act and will not be held liable.

Negligence: Standard of Conduct

There are certain elements that are required to prove that a defendant acted negligently. There is a specific code of conduct which all people are expected to follow and there is a duty of the public to act in a certain way, which reduces the risk of harm to others. Negligence can only be claimed by an injured plaintiff, whose interests have actually been interfered with. This portrays that a plaintiff must prove his injuries, and prove that they were caused by the defendant. This proximate cause is the link between the defendant's actions and the plaintiff's injuries. There is a statute of limitations in negligence cases, however, there are several rules, such as discovery and continuing negligence, which may excuse a plaintiff from the statute of limitations.

Negligence Proof

The necessity for a negligence case to be tried in a court of law is essential and evident. Tort law, like any other law, is tough to decide upon when an enforcement or violation issue arises, and is furthermore tedious. In negligence cases, a court appoints a jury to make a decision upon a case based on the direct or circumstantial evidence that is available to them. The burden of proof a plaintiff faces in a case, relates to four elements of proof that must exist in order for them to be able to prove that a negligent act not only existed, but the fact that the act by a defendant, led to the injury sustained by the plaintiff. 

Proximate Cause

The name given to the direct cause of an accident, or incident leading to injury, is referred to as 'proximate'. The term proximate has long been known to mean near, or in the vicinity of, not actual. This gives a misconception to the name, as if the cause was nearly opposed to the actual one. Other issues arise deeper within proximate cause, and that is with the scope of liability and its extent. Controversy exists as to where liability should be extended to a defendant, based on their responsibility or duty.

Joint Tortfeasors

Joint tortfeasors, seen as equally liable for the committing of a tort, usually can be combined under one indictment. This is known as a "joinder of defendants". In a case similar to this, one significant reasoning behind its institution besides the commonality that the defendants share in their joint action, is that of "judicial economy." In reference to this term, the court is making the decision that placing all defendants under one sole indictment will be the most appropriate option in terms of efficiency and, ultimately, cost-effectiveness for the judicial system itself. Due to the mounting quantities of cases arising daily, this practice is employed as a worthwhile alternative, especially when an occasion such as that of joint tortfeasors comes about.

Limited Duty

In legal terms, duty is seen as an individuals obligation to act in a manner conducive to the well being of everyone around them, such as the prevention of any "foreseeable injury to a victim." Such a term that best represents this obligation is that of a "duty of care", or even "good Samaritan" to an extent. Duty, itself, serves two other important functions for societal concerns attached to tort law. These include a "general principle" and a "limitation." A general principle provides a precedence for future cases, while limitation sets forth the "boundaries" for which liability may exist for individuals involved in an incident. Actual application of this term comes in the form of its existence at the "abstract level" and "in fact or problem".

Owners & Occupiers

The concerns for areas outside of the premises of a given property deal with the condition of such a property. This is in direct regards to certain factors and attributes such as structural or fixtures on the property that could have an effect on the immediate areas surrounding it. The term trespassing adults refers to any person who has been found to be entering, occupying, or traveling through a property that is owned by someone else, without their permission or consent. Licensees are persons that are given a license, as a form of permission, to enter a property lawfully. Such persons are to enter the property for a reason that does not have to be in the best interest or benefit of the owner. By being granted the license to enter and occupy such property, this individual is exempt from trespassing status, and is completely abiding by the law.

Negligence- Defenses

Contributory negligence is one of the most commonly used negligence defenses. The defendant attempts to deny the plaintiff the right to action, by claiming that the plaintiff's own negligence played a large role in his injuries. In contributory negligence, both parties are guilty of negligence, but the plaintiff is not awarded any damages. The last clear chance rule is an exception to the contributory negligence defense which permits the plaintiff more freedom in taking action against a defendant when the plaintiff is also guilty of negligence. The last clear chance refers to an instance where the defendant had the last clear chance to avoid injuring the plaintiff, but did not take the opportunity. In cases where both the plaintiff and the defendant are both guilty of some degree of negligence, contributory negligence places liability solely on the plaintiff.

Imputed Negligence

Vicarious liability represents a venue in which individuals may be "vicariously" held accountable for the actions of individuals other than themselves. In these cases, the ones held liable are those who have some type of legal claim to the actual individuals at fault. Two such persons may be parents to mischievous children or employers to careless employees, as well as a guardian. In each circumstance, the liable individuals are taking the place of others. A joint enterprise is described as an action, which involves two or more individuals, usually with monetary considerations involved. Additional elements which comprise it include a common goal as well as concurrent rights to take the lead of the operation.

Strict Liability

The basic structure that encompasses that of strict liability is the fact that liability is maintained despite any intent otherwise. In this way, it matters only that the action was performed to its fruition and an eventual injury of another. Certain areas in which safety laws have had to come to the forefront concerning liability include incidents involving product defects. In cases such as these, consumers must only prove that their injuries stemmed directly from the product in question in order to garner an appropriate judgment from the court. The purpose behind such a seemingly rigid form of legislature is to prevent future occurrences from happening by providing precedence to fall in line with.

Compensation Systems

In tort cases, victims often receive compensation, including monetary judgments. However, some judgments include other factors such as: the accused, publicly admitting guilt. In most jurisdictions, the courts have placed limits, or judgment ranges, which depend on specific factors found in the case. In most cases, victims that sustain injuries receive a judgment which maxes out, regardless of how painful and permanent the injury may be. However, the courts can award other judgments, in addition to the one made for specific bodily injury.

Nuisance

In modern tort law there are different types of nuisances: public, private, and absolute. A private nuisance effects one individuals enjoyment of his land, while a public nuisance effects a larger amount of citizens, or the public in general. Absolute nuisances are nuisances for which the defendant is strictly liable. The simple form of nuisance is described as an act which takes away from rights to the use, and enjoyment of land that every owner has.

Products Liability

Products Liability is a field of tort law which concerns the responsibility of the manufacturer or vendor of a product to ensure that products are safe and do not cause injury. Products subjected to liability include all consumer goods, medical devices, commercial/personal vehicles, aircraft and consumable goods such as food and prescription drugs. As it is the duty of a product vendor or manufacturer to produce/supply a product which will not cause harm during normal use, manufacturer/vendors of unsafe products are subject to recovery for damages.

Misrepresentation & Nondisclosure

Misrepresentation and nondisclosure form two fundamental bases for many actions represented under tort law. Any case where false or hidden information plays a significant part, essentially implies a standard of care that reflects the negligence addressed by tort.  

To phrase it more simply, the fact that information has been withheld or misrepresented directly implies a negligent situation. This means that among the various subsections of tort law, cases of misrepresentation and nondisclosure can prove to be the easiest to form a legal consensus of opinion on whether negligence has happened, due to the very idea that the act itself is a negligent action. 

Misrepresentation and nondisclosure can take many forms, but generally they refer to an act or service. they are usually rendered for compensation that do not fulfill their terms of promise, either because they misrepresent their ability to perform, or fail to disclose elements that prevent adequate performance (like a unknown side effect for a product, or a conflict of interest in a case of service).  

There are many remedies one may seek when a case of misrepresentation can be seen to have occurred, though the extent to which they fall under tort law or other forms of legal action are highly dependent on the specific legal system, as well as the nature of the misrepresentation.  In nearly all cases, there is an obligation on the provider of a product or service to provide information either by law, or by request, so as to adhere to all legal standards of accurate representation.

Defamation

The term defamation refers to an abusive attack on a person's character or to make false claims against someone in order to damage their good name. There are two forms of defamation that can be used: libel and slander. An unreasonable person may abuse the right of privilege in order to commit defamation against another person. The right of privilege (or "qualified privilege")  being that a person has a right to make statements during the trial process. This privilege often protects against an unreasonable person who wishes to make defamation statements.     

Misuse of Legal Procedure

Misuse of Legal Procedure is a series of torts that involve the corrupt or undue filing of litigation for unlawful reasons. Public right of access to courts is granted on good faith that claimants will act with probable cause and honesty. Conversely, when a plaintiff in a lawsuit is found to have initiated legal action for purposes of deliberate harassment or inconvenience of the defendant, or when the court terminates the suit in favor of the defense, the defense may seek damage compensation for losses incurred in the legal process. These losses may be qualified under charges of Malicious Prosecution, Wrongful Civil Proceedings or Abuse of Process. 

Domestic Relations 

Domestic Relations is an evolving area of Tort Law which deals with a family's inner workings. The evolution of Domestic Relations Tort has not only shaped the way that family's may collect for damages or interference to the family unit itself resulting from tortious conduct; it has shaped the way husbands, wives, children and legal guardians are viewed as legal entities. Originally, under common law, children and wives were treated as chattels and functioned under a man's proprietary rights. In the 1900's, several advances in Family Law provided for the legal rights of women and children to act as distinct legal entities from their husbands/fathers. 

Survival & Wrongful Death

Survival and Wrongful Death are tort claims made after the death of an individual in an at-fault situation. This means that the deceased must be victim of a tort, before death or at the time of death. Survival actions are raised by the executives of the victim's estate, and are continuations of tort actions that the victim would have been entitled to raise in life. Wrongful death claims are made by surviving dependent's for the loss of the decedent's contributions to their lives.

Economic Relations

Torts of Economic Relations are allegations of direct interference with business relationships, agreements, or prospects, which result in quantifiable losses. When suing for Torts of Economic Relations, it is important that the plaintiff be able to prove that the defendant acted intentionally with knowledge of his or her own actions, and that the subsequent actions were injurious to the claimant in the form of economic losses. Torts of Economic Relations normally fall under classifications of Interference with Contractual Relations, Interference with Prospective Advantage or claims of Injurious Falsehood.

Immunities

In tort cases, there are certain intervening factors which allow individuals immunity, from their actions. Immunity implies either, that the person could not understand the risks associated with their actions or that they can not be held liable because they were acting on behalf of the government or other entity. Cases in which individuals are not likely to understand the possible outcomes of their actions, include infant immunity or insanity immunity. 

Infant immunity applies to minors that are too young to grasp the consequences of their actions. In addition, the minor must not have no intent to cause harm to person or property. It can not be claimed that the minor did not understand the consequences of their actions, if they intended the negative consequences that resulted from their actions. Intent can not be present without an understanding of possible outcomes. In cases that involve infant immunity, the parents or guardians of the minor, could be held liable for their actions, regardless of the minors understanding of the possible outcomes of those actions.

Insanity immunity can be utilized as a defense in cases where a person is deemed insane, or mentally incapable of understanding the possible outcomes of an action. In cases where insanity immunity is a factor, the caregiver of the person that acted in manner which caused a negative outcome, could be held liable in the same manner that a parent or guardian could be liable for a minor. In either case, the actor and those responsible for the care of the actor, could both be held liable for the action.

A Brief Overview of Tort Law

Introduction 

A tort is a civil breach committed against another in which the injured party can sue for damages. In personal injury cases, the injured party will attempt to receive compensation with the represantation of a personal injury lawyer in order to recover from damages incurred. Tort law decides whether a person should be held legally responsible for injury against another, and what type of compensation the injured party is entitled to. There are four elements to tort law: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts.

Intentional Interference with a Person

All tortious charges of intentional interference with person/property involve intent, which provides for a civil wrong, knowingly committed by the offender.  This contrasts with torts of negligence, which results from lack of concern or responsibility on behalf of the offender.These damages are dealt with through civil litigation.

Defenses to Intentional Interference with Persons

When a plaintiff accuses a defendant of an intentional tort, it is the defendant's responsibility to identify any justifications for his actions that may excuse him from liability. In tort law, there are several privileges that a defendant may apprehend, in order to avoid liability. It is up to the courts to determine whether the defendant's privilege excuses him from liability. They need to conclude on whether the defendant had consent, permission by the plaintiff, or whether the plaintiff was defending himself, his property, or another person. If the defendant is able to establish privilege, then it is said that he has not committed a tortious act and will not be held liable.

Negligence: Standard of Conduct

There are certain elements that are required to prove that a defendant acted negligently. There is a specific code of conduct which all people are expected to follow and there is a duty of the public to act in a certain way, which reduces the risk of harm to others. Negligence can only be claimed by an injured plaintiff, whose interests have actually been interfered with. This portrays that a plaintiff must prove his injuries, and prove that they were caused by the defendant. This proximate cause is the link between the defendant's actions and the plaintiff's injuries. There is a statute of limitations in negligence cases, however, there are several rules, such as discovery and continuing negligence, which may excuse a plaintiff from the statute of limitations.

Negligence Proof

The necessity for a negligence case to be tried in a court of law is essential and evident. Tort law, like any other law, is tough to decide upon when an enforcement or violation issue arises, and is furthermore tedious. In negligence cases, a court appoints a jury to make a decision upon a case based on the direct or circumstantial evidence that is available to them. The burden of proof a plaintiff faces in a case, relates to four elements of proof that must exist in order for them to be able to prove that a negligent act not only existed, but the fact that the act by a defendant, led to the injury sustained by the plaintiff. 

Proximate Cause

The name given to the direct cause of an accident, or incident leading to injury, is referred to as 'proximate'. The term proximate has long been known to mean near, or in the vicinity of, not actual. This gives a misconception to the name, as if the cause was nearly opposed to the actual one. Other issues arise deeper within proximate cause, and that is with the scope of liability and its extent. Controversy exists as to where liability should be extended to a defendant, based on their responsibility or duty.

Joint Tortfeasors

Joint tortfeasors, seen as equally liable for the committing of a tort, usually can be combined under one indictment. This is known as a "joinder of defendants". In a case similar to this, one significant reasoning behind its institution besides the commonality that the defendants share in their joint action, is that of "judicial economy." In reference to this term, the court is making the decision that placing all defendants under one sole indictment will be the most appropriate option in terms of efficiency and, ultimately, cost-effectiveness for the judicial system itself. Due to the mounting quantities of cases arising daily, this practice is employed as a worthwhile alternative, especially when an occasion such as that of joint tortfeasors comes about.

Limited Duty

In legal terms, duty is seen as an individuals obligation to act in a manner conducive to the well being of everyone around them, such as the prevention of any "foreseeable injury to a victim." Such a term that best represents this obligation is that of a "duty of care", or even "good Samaritan" to an extent. Duty, itself, serves two other important functions for societal concerns attached to tort law. These include a "general principle" and a "limitation." A general principle provides a precedence for future cases, while limitation sets forth the "boundaries" for which liability may exist for individuals involved in an incident. Actual application of this term comes in the form of its existence at the "abstract level" and "in fact or problem".

Owners & Occupiers

The concerns for areas outside of the premises of a given property deal with the condition of such a property. This is in direct regards to certain factors and attributes such as structural or fixtures on the property that could have an effect on the immediate areas surrounding it. The term trespassing adults refers to any person who has been found to be entering, occupying, or traveling through a property that is owned by someone else, without their permission or consent. Licensees are persons that are given a license, as a form of permission, to enter a property lawfully. Such persons are to enter the property for a reason that does not have to be in the best interest or benefit of the owner. By being granted the license to enter and occupy such property, this individual is exempt from trespassing status, and is completely abiding by the law.

Negligence- Defenses

Contributory negligence is one of the most commonly used negligence defenses. The defendant attempts to deny the plaintiff the right to action, by claiming that the plaintiff's own negligence played a large role in his injuries. In contributory negligence, both parties are guilty of negligence, but the plaintiff is not awarded any damages. The last clear chance rule is an exception to the contributory negligence defense which permits the plaintiff more freedom in taking action against a defendant when the plaintiff is also guilty of negligence. The last clear chance refers to an instance where the defendant had the last clear chance to avoid injuring the plaintiff, but did not take the opportunity. In cases where both the plaintiff and the defendant are both guilty of some degree of negligence, contributory negligence places liability solely on the plaintiff.

Imputed Negligence

Vicarious liability represents a venue in which individuals may be "vicariously" held accountable for the actions of individuals other than themselves. In these cases, the ones held liable are those who have some type of legal claim to the actual individuals at fault. Two such persons may be parents to mischievous children or employers to careless employees, as well as a guardian. In each circumstance, the liable individuals are taking the place of others. A joint enterprise is described as an action, which involves two or more individuals, usually with monetary considerations involved. Additional elements which comprise it include a common goal as well as concurrent rights to take the lead of the operation.

Strict Liability

The basic structure that encompasses that of strict liability is the fact that liability is maintained despite any intent otherwise. In this way, it matters only that the action was performed to its fruition and an eventual injury of another. Certain areas in which safety laws have had to come to the forefront concerning liability include incidents involving product defects. In cases such as these, consumers must only prove that their injuries stemmed directly from the product in question in order to garner an appropriate judgment from the court. The purpose behind such a seemingly rigid form of legislature is to prevent future occurrences from happening by providing precedence to fall in line with.

Compensation Systems

In tort cases, victims often receive compensation, including monetary judgments. However, some judgments include other factors such as: the accused, publicly admitting guilt. In most jurisdictions, the courts have placed limits, or judgment ranges, which depend on specific factors found in the case. In most cases, victims that sustain injuries receive a judgment which maxes out, regardless of how painful and permanent the injury may be. However, the courts can award other judgments, in addition to the one made for specific bodily injury.

Nuisance

In modern tort law there are different types of nuisances: public, private, and absolute. A private nuisance effects one individuals enjoyment of his land, while a public nuisance effects a larger amount of citizens, or the public in general. Absolute nuisances are nuisances for which the defendant is strictly liable. The simple form of nuisance is described as an act which takes away from rights to the use, and enjoyment of land that every owner has.

Products Liability

Products Liability is a field of tort law which concerns the responsibility of the manufacturer or vendor of a product to ensure that products are safe and do not cause injury. Products subjected to liability include all consumer goods, medical devices, commercial/personal vehicles, aircraft and consumable goods such as food and prescription drugs. As it is the duty of a product vendor or manufacturer to produce/supply a product which will not cause harm during normal use, manufacturer/vendors of unsafe products are subject to recovery for damages.

Misrepresentation & Nondisclosure

Misrepresentation and nondisclosure form two fundamental bases for many actions represented under tort law. Any case where false or hidden information plays a significant part, essentially implies a standard of care that reflects the negligence addressed by tort.  

To phrase it more simply, the fact that information has been withheld or misrepresented directly implies a negligent situation. This means that among the various subsections of tort law, cases of misrepresentation and nondisclosure can prove to be the easiest to form a legal consensus of opinion on whether negligence has happened, due to the very idea that the act itself is a negligent action. 

Misrepresentation and nondisclosure can take many forms, but generally they refer to an act or service. they are usually rendered for compensation that do not fulfill their terms of promise, either because they misrepresent their ability to perform, or fail to disclose elements that prevent adequate performance (like a unknown side effect for a product, or a conflict of interest in a case of service).  

There are many remedies one may seek when a case of misrepresentation can be seen to have occurred, though the extent to which they fall under tort law or other forms of legal action are highly dependent on the specific legal system, as well as the nature of the misrepresentation.  In nearly all cases, there is an obligation on the provider of a product or service to provide information either by law, or by request, so as to adhere to all legal standards of accurate representation.

Defamation

The term defamation refers to an abusive attack on a person's character or to make false claims against someone in order to damage their good name. There are two forms of defamation that can be used: libel and slander. An unreasonable person may abuse the right of privilege in order to commit defamation against another person. The right of privilege (or "qualified privilege")  being that a person has a right to make statements during the trial process. This privilege often protects against an unreasonable person who wishes to make defamation statements.     

Misuse of Legal Procedure

Misuse of Legal Procedure is a series of torts that involve the corrupt or undue filing of litigation for unlawful reasons. Public right of access to courts is granted on good faith that claimants will act with probable cause and honesty. Conversely, when a plaintiff in a lawsuit is found to have initiated legal action for purposes of deliberate harassment or inconvenience of the defendant, or when the court terminates the suit in favor of the defense, the defense may seek damage compensation for losses incurred in the legal process. These losses may be qualified under charges of Malicious Prosecution, Wrongful Civil Proceedings or Abuse of Process. 

Domestic Relations 

Domestic Relations is an evolving area of Tort Law which deals with a family's inner workings. The evolution of Domestic Relations Tort has not only shaped the way that family's may collect for damages or interference to the family unit itself resulting from tortious conduct; it has shaped the way husbands, wives, children and legal guardians are viewed as legal entities. Originally, under common law, children and wives were treated as chattels and functioned under a man's proprietary rights. In the 1900's, several advances in Family Law provided for the legal rights of women and children to act as distinct legal entities from their husbands/fathers. 

Survival & Wrongful Death

Survival and Wrongful Death are tort claims made after the death of an individual in an at-fault situation. This means that the deceased must be victim of a tort, before death or at the time of death. Survival actions are raised by the executives of the victim's estate, and are continuations of tort actions that the victim would have been entitled to raise in life. Wrongful death claims are made by surviving dependent's for the loss of the decedent's contributions to their lives.

Economic Relations

Torts of Economic Relations are allegations of direct interference with business relationships, agreements, or prospects, which result in quantifiable losses. When suing for Torts of Economic Relations, it is important that the plaintiff be able to prove that the defendant acted intentionally with knowledge of his or her own actions, and that the subsequent actions were injurious to the claimant in the form of economic losses. Torts of Economic Relations normally fall under classifications of Interference with Contractual Relations, Interference with Prospective Advantage or claims of Injurious Falsehood.

Immunities

In tort cases, there are certain intervening factors which allow individuals immunity, from their actions. Immunity implies either, that the person could not understand the risks associated with their actions or that they can not be held liable because they were acting on behalf of the government or other entity. Cases in which individuals are not likely to understand the possible outcomes of their actions, include infant immunity or insanity immunity. 

Infant immunity applies to minors that are too young to grasp the consequences of their actions. In addition, the minor must not have no intent to cause harm to person or property. It can not be claimed that the minor did not understand the consequences of their actions, if they intended the negative consequences that resulted from their actions. Intent can not be present without an understanding of possible outcomes. In cases that involve infant immunity, the parents or guardians of the minor, could be held liable for their actions, regardless of the minors understanding of the possible outcomes of those actions.

Insanity immunity can be utilized as a defense in cases where a person is deemed insane, or mentally incapable of understanding the possible outcomes of an action. In cases where insanity immunity is a factor, the caregiver of the person that acted in manner which caused a negative outcome, could be held liable in the same manner that a parent or guardian could be liable for a minor. In either case, the actor and those responsible for the care of the actor, could both be held liable for the action.

Defamation, Libel and Slander at Law of Tort and Esemement for Law student and public, Lawyers

                           Defamation, Libel and Slander Law

• What Are Defamation, Libel and Slander
• What Defenses Are Available to People Accuse of Defamation?
• Public Figures
• Why Commencing a Defamation Action Is Not Always a Good Idea

Contents

It is not unusual for attorneys to receive inquiries about defamation actions from people who are in conflicts with neighbors or other members of their communities, and have become the subjects of vicious lies. The area of law most implicated by that type of conduct is "defamation of character", a cause of action which is generally defined to include "libel" and slander".

What Are Defamation, Libel and Slander?

Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.
Typically, the elements of a cause of action for defamation include:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print.
Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.
Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may constitute defamation per se:

• Attacks on a person's professional character or standing;
• Allegations that an unmarried person is unchaste;
• Allegations that a person is infected with a sexually transmitted disease;
• Allegations that the person has committed a crime of moral turpitude;

While actions for defamation have their roots in common law, most jurisdictions have now enacted statutes which modify the common law. They may change the elements of the cause of action, limit when an action may be filed, or modify the defenses to an action for defamation. Some may even require that the defendant be given an opportunity to apologize before the plaintiff can seek non-economic damages.

What Defenses Are Available To People Accused of Defamation?

The most important defense to an action for defamation is "truth", which is an absolute defense to an action for defamation.
Another defense to defamation actions is "privilege". For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.
A defense recognized in most jurisdictions is "opinion". If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context - that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met. Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.
A defense similar to opinion is "fair comment on a matter of public interest". If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.
A defendant may also attempt to illustrate that the plaintiff had a poor reputation in the community, in order to diminish any claim for damages resulting from the defamatory statements.
A defendant who transmitted a message without awareness of its content may raise the defense of "innocent dissemination". For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter.
An uncommon defense is that the plaintiff consented to the dissemination of the statement.

Public Figures

Where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with "actual malice". In translation, that means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth..

Kalam-e-Bahoo

YaBahu Bookshelf

http://www.yabahu.com/Bookshelf/Bookshelf-2.htm

Ijtehad has got important status in Islamic law. discuss. (19980(2006) Sponsored Links

1. Introduction:
Ijtehad is one of the dependent sources of Islamic law. if a matter is not resolved expressly in a Quran Sunnah and by way of Ijma the jurist must not leave the matter unresolved rather he should strive hard to find out the solution under right ofQuran and Sunnah.
2. Meaning and definition of ijtehad:
I. Meaning of ijtehad:
(i) Literal:
Ijtehad Iiterally means striving expending of maximum effort in the performance of an act.
(ii) Technical:
It is the effort made by Mujtahid in seeking knowledge of the ahkam (rules) of the Shariah through interpertation.
II. Definition of Ijtehad:
"Ijtehad means the application by a lawyer of all his faculties to the consideration of the authorities of the law, that is theQuran Traditions and the Ijma with a view to find out what in all probability is the law.
3. Arguments in support of Ijtehad:
I. Quranic verses in support of Ijtehad:
Following Quranic verses are in favour of Ijtehad:
"And we have revealed on you the book which describes everything."
"We have omitted nothing form this book.:
"The ask those who have knowledge, if you yourselves do not know,"
II. Ahadith in suppopt of ijtehad:
Following Ahaditths are also in support of Ijtehad.
"Exercise Ijtehad because God makes the work easy for the person for which he is born in this world."
"When a ruler exercise Ijehad properly in resolving an issue he is to be rewarded by God in dual wayand if he is wrong in this conclusion he gets one reward."
4. Function of Mujtahid:
Following are the functions or tasks of the Mujtahid:
(i) To discover the law that is either stated explicitly in the primary sources or is impiled by the texts, that is literalinterpretation.
(ii) To extent the law to new to new cases which are similar to cases mentioned in textual sources.
(iii) To extend the law to new cases which are not covered by the previous methods.
5. Limitations of Ijtehad:
Ijtehad cannot be made in case which are covered by the express words of Quran Hadith or has been determined by basic Ijma. A jurist cannot exercise Ijtehad on the basic pillars of Islam e.g paying of Zaket, Prohibiton of Murder etc.
"PLD 1981 FSc 23."
"Ijtehad is permissible only in field where on rule of Injunction form Holy Quran or Sunnah is available."
6. Modes of performing Ijtehad:
A jurist may perform Ijtehad by following the following pattern.
I. Literal constrution:
A jurist first concentrates on literal meaning of the texts and follow the plain meaning rule.
(i) Qiyas:
After the literal construction the jurist may turn to qiyas but must confined to strict types of analogy.
III. Collectively reliance on texts:
After exhausting the first two methods or modes the jurist may rely on all the texts considered collectively. this means that legal reasoning is undertaken more in line with the spirit of the law and its purposes rather than the confines of individual texts.
7. Qualifications of Mujtahid:
The word Mujtahid means a person who can make Ijtehad. following are the qualifications of a mujtahid.
I. According to author of Jam Ul Jawami:
According to the Author of Jam'al Jawami following are thequalifications of a mujtahid.
(i) Major:
A mujtahid must be a major i. e. has attained the age of majority so a minor cannot be a mujtahid.
(ii) Sound and rational mind:
He must be of sound mind, possessing the understanding and of sufficient intellectual to grasp the subject.
(iii) Knowledge of grammar:
He must have average knowledge of the Arabic language, grammar and recognized principles of jurisprudence and sourcesof law i. e. Quran Sunnah etc.
(iv) Acquaintance with the principles of Shariah:
He must have well versed the main principles of Shariah or the legal code so as to able to ascertain true intention of the law-giver.
(v) Knowledge of Naskh:
The mujtahid must understands abrogation (Naskh) and identifies the occasions on which rules have been repealed by law-giver.
(vi) Knowledge to circumstances of Quranic revelations:
A must know the circumstances in which the texts of HolyQuran were revealed or repealed.
II. According to Fakhural Islam:
The great thinker Fakhural Islam enumerates the following conditions.
(i) Conversant with Islamic Jurisprudence:
A mujtahid must be conversant with the science of Islamicjurisprudence and the rules of law applied is various departments.
(ii) Knowledge of the Quran:
A mujtahid should have knowledge of Quran together with itsmeaning both literal and dictionary and he must be able to interpret its verses.
(iii) Knowledge of the Traditions:
A mujtahid should have knowledge of the traditions as well. he must be fully familiar with the traditions reported by from the Holy Prophet (P.B.U.H) and able to distinguished between authentic and un-authentic matwater and Mashhoor traditions. he must be familiar with rules for authenticity leading to the genuineness of the traditions.
(iv) Acquaintance with the rules of analogical deduction:
A mujtahid must be aware of and full conversant with the rules and methods of analogical deduction.
III. Other qualifications:
Following are also considered as necessary qualifications ofmujtahid.
(i) He must have faith and the courage of convocation.
(ii) He must have competence and advanced proficiency in Arabic language.
(iii) A comprehensive understanding of Fiqh, the basic principles and other relevant matters.
(iv) He must understands the different forms of bayan or elaboration of the texts, which is usually provided by the law-giver himself, and also identifies the occasions on which such bayan is invoked.
(v) A proper understanding of modern development and a reasonable appraisal of contemporary exigencies.
8. Kinds of Mujtahid:
I. Mujtahidum Fish-Shari:
These are the jurists who have an absolute and independent power of expounding the law e. g. Abu Hanifa Malik, Shafi etc.
II. Mujtahidum Fil Madhhab:
The jurists having authority to expound the law according to a particular school comes into this category. the were the disciples of jurists of first rank like Abu Yusuf belongs to Hanafi school. these mujtahids followed the fundamental principles laid down by their respective masters but not consider themselves bound to follow the general principles or arguments in particular cases, and they often profounded view opposed to those of their masters.
III. Mutahidum Fil Masal'l:
These are the jurists who are competent to expound the law on a particular question which had not been settled by the juristof first and the second class. the jurist of this rank is at liaberty to lay down the law in conformity to the principles of his school e. g, Khassaf, Qadi Khan.
IV. Mujtahidum Muqallid:
They are also called Mujahid Muqayyid. they have not any right o deduct the law but their function was to explain the law and draw inferences. theses mujtahids are divided into four groups.
(i) Ashabu't Takrij.
(ii) Ashabu'i Tarjih.
(iii) Ashabu'i Tashih.
(iv) Asabu'i Shariah.
9. Legal effect of Ijthad:
The legal effect of Ijtegad is the probability of the conclusion so arrived at being correct but the possibility of such conclusion being erroneous is not discretionary or presumptive law.
10. Position in Pakistan:
The courts in Pakistan specially Federal Shariat court applies Ijtehaed in its judgment and cases. the Federal Shariat court provided guideline to the rulers as well public through Ijtehad. the court observes the basic principles of democracy, freedom, equality, tolerance and social justice as enumerated by Islam.
11. Modern principles of Ijehad:
Modern principles of Ijtehad are as under:
(i) State and social justice.
(ii) New age new laws.
(iii) What is not categorically and unconditionally prohibited is permissible.
(iv) Follow the modern pattern.
(v) The necessity of new Sunnah and new Fiqh.
(vi) Need of revision of Islam.
(vii) Revision and reform of the recess and practices of an early society.
(viii) Istihsan.
12. Importance of Ijtehad in modern world:
Ijtehad is a living source of law. it has become important in the modern times due to the needs of the present time, such as encomic, social and political change, so that the Muslim socciety and people may become a powerful force in the modern times. Shah Wali Ullah was the first Muslim thinker to propoued a theory of cautious exercise of Ijtehad. then it iwas followed by Sir Syed Ahamad Khan and Allama Mohammad Iqbal. according to Allama Iqbal, Ijtehad can be undertaken not only by an individual jurist but also by a legislative assembly recognizing the Importance of Ijtehad in the modern times, the Shariah Qrdinance of 1988. in Pakistan has entrusted the task of making the laws in the country to conforms to the Quran and Sunnah to the judiciary.
13. Conclusion:
To conclude, I can say, that the importance of Ijtehad lies in the dynamic and flexible spirit of Islam, which is by the Quran and Sunnah, Islamic law can be interpreted by a mujtahid who may be either an individual or a legislative assembly. this development will bring about an accommodation between the prescriptions and injunctions of Islam, on the one hand, and the imperatives of modern life on the other.