A tort of negligence arises from the breach of duty primarily fixed by law; such duty is towards persons generally and its breach is addressed by action for un-liquidated damages. Negligence in tort basically means the failure to use ordinary care through an act or omission. This arises when a person does not exercise amount of care that a reasonably careful person would use under the circumstances or somebody does something that a reasonably careful person wouldn’t do.
In the case of Yvonne Esposito against Jason Davis and others alleging Negligence, if she is to succeed in a negligence action, the plaintiff must be able to prove that the defendant owed her a legal duty of care and the defendant is guilty of breach of that duty and the damage has been caused to the plaintiff by that breach. The key elements of negligence in tort are; duty of care, breach of that duty and breach being proximate or not too remote. The most important factor that should be considered in Yvonne Esposito’s case is whether Davis really owed her a legal duty of care. A duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while undertaking acts that could foresee ably harm others.
Causation and remoteness of damage are key issues that will be considered in this case. Before the question of remoteness crops up, the plaintiff must prove that the defendant’s conduct was a substantial factor in bringing about the injury. The known characteristics of the party exposed to the risk will greatly influence the outcome of this case. Jason Davis’ conduct and the injury suffered on the old lady are not closely related. Putting into consideration Yvonne’s age, she is a fragile woman with a weak physique. The extent of her injury could be largely attributed to her already weak physical structure rather than on the impact of her collision with Davis. Had she fallen on her own, the probability is that she would have suffered the same injuries. The damage must be caused to some substantial extent by the defendants conduct but in this case, to a large extent it was caused by the Plaintiff’s weak physique.
The test for remoteness is ‘reasonable fore see ability’ in most cases, the ‘Neighbors test ‘is often used to test whether there is a relationship of proximity between the plaintiff and the defendant. Proximity is based on reasonable foresee ability of harm rather than physical proximity. In this case, though Jason Davis turned at an exit and this could have been termed as being careless, the magnitude of injury caused on the old lady would not have been foreseeable. Alternatively, Jason Davis being an employee of the store might have been faced with an emergency within the store that required urgent attention, In this case Jason had not broken his duty of care.
Jason Davis had no legal duty of care on Yvonne Esposito. Employers are usually liable for the torts of their employees. The rule of vicarious liability is that, an employer is vicariously liable for the torts of his employees within the course of employment. The tortuous act must be the wrongful way of doing what the employee is expected to do.
The occupier of the premise who is the store owner is liable to all lawful visitors in his premises. He has a duty to take such care as in all circumstances of the case is reasonable to see that the visitors will be reasonably safe in using the premises. He must be prepared for children to be less careful than adults. The store owner can also give adequate warning of any danger.
Aaron, Larson (2003). Negligence and Tort Law. Retrieved from: www.expertlaw.com/library/personal_injury/negligence.html
Deakin, Simon; Angus Johnston; Basil Markesinis (2003). Markesinis and Deakin’s Tort Law. Oxford University Press. Pp 218
Zweigert, P. & Kotz, H. (1998). An Introduction to Comparative Law (3rd Ed.). Oxford: Clarendon Press. Pp.595–628