2. Lawsuits based on tort in usa

2.1Negligence

Most personal injury cases are based on the doctrine of negligence. In essence, negligence requires every member of society to act responsibly and avoid putting others at risk. That is not to say that negligence will result each time someone gets hurt. The doctrine recognizes that some accidents are unavoidable. To establish liability, the plaintiff must show that a reasonably prudent person in the defendant’s position would have acted differently under the circumstances.[2]

"Negligence" is conduct which falls short of a standard established by the common law for protecting others from unreasonable risks. [5] We can outline such elements of negligence:

1) You are liable for harms to others if you do not act;

2) inadequacy to the degree of care required from reasonable person that would be in such situation;

3) causing harm to others; and

4) the harm was a foreseeable consequence of your action (or inaction)

Normally, "due care" is that degree of care which a hypothetical "reasonably prudent person" would employ under circumstances similar to those in the case being tried. The jury is required to measure the defendant's conduct against the community standard of reasonable behavior.

The reasonably prudent person standard is not always used. The conduct of the very old and the very young must be judged according to what would be reasonable to expect of persons of similar age, intelligence, capacity, and experience. The conduct of persons having, or professing to have, special skills or knowledge is judged according to the conduct of others with similar skills or knowledge. The conduct of persons acting in emergencies is judged according to what would be reasonable to expect of others under similar conditions.

Proof Of Negligence

Normally, negligence is proved by facts which show that: (1) as a matter of law, the defendant owed the plaintiff the duty to exercise due care; and (2) the defendant failed to live up to that standard of care. In certain cases, the proof of negligence may be aided by the rule of "res ipso loquitur," or the rule of "negligence per se."

Res ipso loquitur literally means "things which speak for themselves." This rule is applied to cases in which negligence cannot be proved by ordinary means because the thing causing the injury was entirely under the defendant's control, but the injury can be explained only by negligence. For example, the doctrine is often applied in food poisoning cases where the canning process is entirely under defendant canner's control and the usual methods of investigation and evidence cannot show that the particular can of food involved was improperly processed. The fact that the food was impure can be explained only by the canner's negligence. That is, the impure food speaks for itself. [4, p 48]

Negligence per se means that the action itself constitutes negligence. If it can be shown that the defendant violated a specific safety statute, then the violation is negligence in and of itself, or negligence per se. This rule also bypasses the first step in a negligence case-the necessity for establishing the existence of a legal duty. The statute itself establishes the duty. Negligence per se is often a factor in auto accident cases. Many traffic laws are safety statutes whose violation constitutes negligence per se. [5]

Other Lawsuits Based on Tort

Negligence is the best-known theory of liability that is used in tort law. Other theories of liability in tort include, for example, intentional interference with persons, misuse of legal process, defamation, invasion of privacy, intentional interference with property, nuisance, and strict liability. Some of these theories are discussed below.