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Tort Law: as discussed else where on this site, there a is a big group of laws called torts. Basically, those laws are common law rights held by every man. We often think of laws as statutes written by legislators. However, for centuries English Courts, and then American, had held that there were basic rights to bring suits to be compensated for harm. Tort laws grant you a right to sue for being assaulted, beaten, or even being robbed. It also give you right to sue over dangerous products and polluting neighbors. But the biggest area of torts today is negligence. Early Americans often wrote constitutions that guaranteed those rights.

Every day people are injured, crippled, and killed by boats, trains, planes, and automobiles. Whether the victim has a case almost always boils down to the question of negligence. Traditional law defines negligence as failure to use ordinary care. Then, ordinary care is defined as the type of care that a reasonably prudent person would use under like or similar circumstances, but you have to prove more than just that to prevail. To win a case of negligence, you have to show that the defendant (1) owed you a duty of care, (2) that he failed to use ordinary care, (3) that your suffered damages, (4) that were caused by defendant, (5) that injury was foreseeable. Lets look as some examples.

Duty: Dumb Drunken Driver gets in his care after downing several beers. He drives down the road, and runs into you and breaks your arm. Can you prevail if you sue him? First, did he owe you a duty? Duty is a question usually answered by judges looking over the law. Its not normally a question put to juries. Judges look at facts and the law, and
reason whether law imposes a duty on drivers. Early on, when cars

were first being used, judges determine yes that you do owe a duty to drive with reasonable care.

Questions of duty may get more complex in other cases. Suppose a mining company left an open mine shaft deep in the dessert on their own property. Fifty years later while sky diving, you fall into the shaft when the wind blows you way off your course, and you get hurt. In this case, a judge would probably say no duty to protect sky divers from falling into mind shafts. If there is no duty, then there is no requirement for them to act with reasonable care. Courts usually look at three things to determine if there is a duty: (1) whether it was foreseeable, or predictable, that this type of harm would happen, (2) whether there is a close proximity between the victim and the defendant, and (3) whether it would be fair, just, and reasonable to impose liability.

In the Dumb Drunken Driver case, it is foreseeable that if you drive carelessly, someone is likely to get hurt, so clearly there is a duty. The issue would probably not even come up as court after court has looked at car cases and determined that all river owe a duty of ordinary care toward others when driving. However, as in our sky diving example, when the injury and the cause are far separated and when the facts are bizarre, its unlike that a court will impose a duty of care.

Ordinary Care: The next thing you would have to prove in order to prevail is that Dumb Drunk breached his duty of ordinary care, or failed to use ordinary care. Obviously, he got in his car drunk, so that should not be a problem, but what if he was sober? You would have to prove that he did something else that ordinary prudent driver would not normally do. You could show that he was not keeping a proper look out, or failed to properly steer his car, or apply the brakes. Many courts will allow you to use facts and circumstances, or circumstantial evidence, to prove this.