TORTS - questions/answers

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thegrayman
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TORTS - questions/answers

Postby thegrayman » Sat Oct 29, 2011 10:24 am

I was thinking it might be of some use to have a specific thread for torts-related questions (if there already is one, apologies, I only took a cursory glance before posting :oops: )

One thing that still confuses me is the distinction between duty/breach being "simple" negligence, and duty,breach,causation,damages being the tort of negligence.

Does that mean that if you only have duty/breach, there is no cause of action without the other 2 elements? Is there anything that you can do with showing duty/breach but where there is no causation/damages?

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bostonlawchick
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Re: TORTS - questions/answers

Postby bostonlawchick » Sat Oct 29, 2011 10:32 am

Yes, if you only have duty/breach, there is no cause of action. You need to have causation of damages, or else what would you be suing for?

You can have a breach of duty with no causation of damages pretty easily. When you speed, you're breaching a duty, but if you don't hurt anyone while you speed there is no causation of damages.


Proximate cause is what is killing me.

Ignatius J. Reilly
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Re: TORTS - questions/answers

Postby Ignatius J. Reilly » Sat Oct 29, 2011 10:34 am

Yes. If I negligently leave a banana peel on the sidewalk, but no one slips and falls on it before it decomposes, I cannot be liable for the tort of Negligence.

03121202698008
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Re: TORTS - questions/answers

Postby 03121202698008 » Sat Oct 29, 2011 10:39 am

thegrayman wrote:I was thinking it might be of some use to have a specific thread for torts-related questions (if there already is one, apologies, I only took a cursory glance before posting :oops: )

One thing that still confuses me is the distinction between duty/breach being "simple" negligence, and duty,breach,causation,damages being the tort of negligence.

Does that mean that if you only have duty/breach, there is no cause of action without the other 2 elements? Is there anything that you can do with showing duty/breach but where there is no causation/damages?


The distinction is, you may cause an injury but not be negligent because no duty or breach. Courts often refer to this as being negligent or not. However, you must have all four to recover.

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ph14
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Re: TORTS - questions/answers

Postby ph14 » Sat Oct 29, 2011 10:43 am

thegrayman wrote:I was thinking it might be of some use to have a specific thread for torts-related questions (if there already is one, apologies, I only took a cursory glance before posting :oops: )

One thing that still confuses me is the distinction between duty/breach being "simple" negligence, and duty,breach,causation,damages being the tort of negligence.

Does that mean that if you only have duty/breach, there is no cause of action without the other 2 elements? Is there anything that you can do with showing duty/breach but where there is no causation/damages?


Breach is also referred to colloquially as being "negligent." A lot of times this is referred to as "little n" negligence. However, there is no liability under the tort of negligence unless all the elements are met-- duty, breach, causation, harm. So you can't be liable for (the tort of) Negligence without being negligent. But you can be negligent but not be liable for (the tort of) Negligence.

So yes, if you only have duty and breach of that duty, there is no cause of action for (the tort of) Negligence. Remember though that duty and breach are analytically distinct concepts. Lack of a duty is one of the most common reasons for why there is not a claim for (the tort of) Negligence, despite someone being negligent.

thegrayman
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Re: TORTS - questions/answers

Postby thegrayman » Sat Oct 29, 2011 11:08 am

Okay, that is awesome to hear, thank you guys!

I thought that I understood it correctly but wasn't sure if there was something I was missing.

Proximate cause is what just studied in my torts class, still trying to wrap my head around that as well




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