Unintentional torts do not require the defendant to have any intent to commit the act. Unintentional torts are caused by the negligence of a defendant. To establish a negligence case, a plaintiff must prove:
1. The defendant owed plaintiff a duty of care.
2. The defendant violated that duty of care.
3. The violation of the duty was the case in fact of harm to the plaintiff.
4. The violation of the duty was the proximate cause of the plaintiff's harm.
5. The plaintiff suffered damages for which the law will require compensation.
The duty of care required is that of a reasonable person. The question presented is "What would a reasonable person do under the same circumstances?"
For instance, a reasonable person would not drive negligently. If a person did drive negligently, ie: didn't watch what he was doing, and the negligence was the "cause in fact" of the injury to another person then the negligent driver could be liable for damages.
The issue of "cause in fact" stated simply is "but for defendant's act, would the injury have occurred?" In the case of the negligent driver, the defendant would need to show that had the driver not been negligent, the injury would not have occurred. Finally, the act also must be the "proximate cause" (sometimes called the legal cause) of the harm. There are many volumes written on the concept of "proximate cause."
Simply stated, proximate cause is a question of when the law decides to cut off the defendant's liability for his acts. In the negligent driving scenario, what would happen if the plaintiff had sued the parents of the defendant? The plaintiff would argue that "but for the birth of your son, I would not have been injured." While there may be a causal relationship between the birth of the son and the accident, the law chooses at a certain time to cut off the liability of having a child. In other words, while the parents may be vicariously liable for the acts of a child, at some age the law cuts off the liability.
Similarly, if a person drives down a road in a yellow car and unknowingly passes a person with a fear of large yellow objects, causing him to go stark raving mad, the law will cut off the driver's liability and not recognize this as a wrong though there was certainly causation.
The types of suits possible under negligence theory are virtually limitless. Any harm that is caused by the violation of a duty of reasonable care is a potential lawsuit. Operating a car, boat, tractor, etc. in a way that causes damage are some of the more common sources of lawsuits. Also, maintaining your home, office, work site etc. in a way that causes damage gives rise to lawsuits.
Even the most prudent home owner could be hit with a lawsuit from someone who slipped and fell while on his property. The home owner even owes a duty of care, although it may be a lower one, to people trespassing on his property. Negligence while hunting, skiing, fishing, and participating in other sports has also generate lawsuits.
Sometimes courts will deem the violation of a statute as negligence per se. That is, once the plaintiff proves the defendant violated the statute, all he would then need to prove to win the case is that the violation caused damage to the plaintiff.
For example, if your community has a leash law and your dog, while in violation of the leash law, crossed a road and was hit by a car, you as the dog's owner could easily be liable for any damage sustained by the car and its occupants.
Malpractice suits are specialized forms of negligence suits in which the professional's conduct falls below the care required by a reasonable member of the profession. Doctors, lawyers, accountants, dentists, architects, engineers, psychologists, beauticians, plumbers, and educators have all been sued for malpractice.
The general trend is for the plaintiff to sue for any damage sustained in any way and to name, as a defendant, anyone even remotely connected to the damage. Often the professional does not fall below the reasonable standard of care but the jury feels sorry for the injured plaintiff and thus returns a judgment for him. The jury often feels justified because the "rich" professional has "deep pockets" and thus "can afford it."
• NEGLIGENCE - Unintentional omissions or commission of an act that a reasonably prudent person would or wouldn�t do under given circumstances.
• MALPRACTICE - Professional misconduct or an unreasonable lack of skill in discharging professional duties which results in injury or harm to another.
