RecoveringNegligence Corey Jefferson BUS 670: Legal Environment Teri Kuffel October 5th, 2009

RecoveringNegligence

Abstract
The term negligent is the offspring of the Latin verb negligere, meaning to disregard or to slight. Though, in most cases practices such as Law and Medicine append to Latin using its literal interpretation as a tool to define relevant terms, the idea of Negligence takes on a different meaning in the practice of law. The difference is especially distinct in regards to occurrences of torts. Below, we will discuss the elements of a negligent tort and their relationship to a finding of tort liability by briefly discussing the pertinent definitions in reference to the case Republic of France v. United States. As we define Tort and the Elements of a Negligent Tort, take note that our magic number is four, as in four forms of a tort and four elements of a negligent tort1.

1A "tort" is simply the Norman word for a "wrong," but "torts" have typically been distinguished from crimes and from "wrongs" identified with contractual relations. Tort law, then, is concerned with civil wrongs not arising from contracts. White, G. E. (1980, 2003). Tort Law in America: An Intellectual History. New York: Oxford University Press, Inc., p. xxiii

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RecoveringNegligence
ElementsofaNegligentTort
Various definitions of the word Element designate an abstract meaning, however, regarding the Elements of a Negligent Tort, the word Element is a rudimentary presence with a specific purpose in the department of Torts. Before elaborating on the role of elements, it is necessary to define a Tort. A [tort] is a civil wrong that is not a breach of contract and manifests in four forms: intent, recklessness, negligence and strict liability. (Mallor, Barnes, Bowers, & Langvardt, 2009, p. 170) In this discussion, we will focus squarely on Negligence, which is a failure to use reasonable care, with harm to another party occurring as a result. (p. 170) Combining negligent and tort we have a Negligent Tort containing four elements that appear to have some order; these stages are described below: To obtain submittal of a negligence claim to a jury, the plaintiff must [demonstrate] the following elements: (1) the existence of a legal duty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant's breach of duty caused the injury. (p. 208) The four elements of a negligent tort, therefore, are duty, breach, causation, and damages. Negligent conduct falls below the level necessary to protect other against unreasonable risks of harm, and in the following case we will discuss what is a reasonable risks of harm versus unreasonable.

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CaseinSummary:RepublicofFrancev.UnitedStates
The Republic of France owned a cargo ship carrying Fertilizer Grade Ammonium Nitrate (FGAN) at the port of Texas City, Texas from which it had loaded the substance. During the loading, A fire began on board the ship, apparently as a result of a cigarette or match carelessly discarded by a longshoreman in one of the ship's holds. Despite attempts to put it out, the fire spread quickly [and] the Grandchamp exploded with tremendous force. Fire and burning debris spread throughout the waterfront, touching off further fires and explosions in other ships, refineries, gasoline storage tanks, and chemical plants. When the conflagration was over, 500 people had been killed, and more than 3,000 had been injured. The evidence indicated that even though ammonium nitrate was known throughout the transportation industry as an oxidizing agent and as a fire hazard, no one aboard the Grandchamp made any attempt to prevent smoking in the ship's holds. (Republic of France v. United States , 1961) In reaction to the incident, lawsuits developed against the United States, who did pay substantial sums to the victims of this disaster. In court, The United States was treated as the plaintiff (one who files the complaint), and the Republic of France and the French Line as defendants. (Republic of France v. United States , 1961) Up to this point, we can review our definitions. The first element of a negligent tort is duty, more specifically duty of care that asks the question, despite the obvious mishaps (negligence) was there adequate efforts made by either or both parties to prevent and/or resolve this wrongful deed (tort)? Or is there a duty owed to the plaintiff by the defendant? In order to measure liability, treat these two questions and the proceeding questions as a checklist. Is there evidence of the defendants breach of duty? The next questions to ask are who was injured, and was the defendants breach of duty the cause of said injury?

RecoveringNegligence The facts we have uncovered provide only that an incident did occur and that injuries and deaths followed consequently. The following information on the case uncovers the vital information needed to complete the requirements to establish a prima facie (first impression is truth unless otherwise proven) case for either party. Returning to the case, a plaintiff and a defendant have been defined; however, the said defendantRepublic of France-

The defendants had argued that they should not be liable for claims arising out of the explosion because FGAN was not known to be capable of exploding under the circumstances of this case. When the federal district court rejected their petition for limitation of liability, they appealed. (Republic of France v. United States , 1961) The argument posed by the defendant is that of causation and which party is responsible for the cause of this incident and to what degree of cause. The causation question involves three issues: (1) Was the breach an actual cause of the injury? (2) Was the breach a proximate cause of the injury? and (3) What was the effect of any intervening cause arising after the breach and helping to cause the injury? Both actual and proximate cause are necessary for a negligence recovery. (Mallor, Barnes, Bowers, & Langvardt, 2009, p. 224) Negligence recovery is another way of indicating a good chance at winning the case. By merely proving actual cause, we are missing the proximity of relationship between the breach of duty and the injury that breach caused. Republic of France is fighting hard to switch from defendant to plaintiff because A plaintiff who wins a tort case usually recovers compensatory damages for the harm [they] suffered as a result of the defendant's wrongful act. (p. 170) The Judges ruling on liability focused on causation and, thus, was unnecessary to measure damages at this point in the case. Rather, the judge assessed the actual cause by

RecoveringNegligence way of but-for logic: Substantially all of the evidence is to the effect that the explosion, as distinguished from the fire, could not reasonably have been foreseen. (Republic of France v. United States , 1961) In other words, it is not a true statement that the explosion would not have happened but-for (if not for) breach of duty. The judges discussion on cause was as follows:

Not only proximate causal connection but also the very existence of a duty depends upon reasonable foreseeability of consequences. The test of whether a negligent act or omission is a proximate cause of an injury is whether the wrongdoer might by the exercise of ordinary care have foreseen that some similar injury might result from the negligence. (Republic of France v. United States , 1961) The judge, therefore, ruled in favor of the Republic of France as far as treating the United States as the defendant instead of the plaintiff.

Conclusion
As previously stated, Negligence takes on a different meaning when applied in a court setting, especially in a tort case. The number of variables to factor under negligence in simply naming the defendant and the plaintiff can require a matching level of effort needed for some entire cases. This glimpse into the process of labeling duty of care, breach of duty, causation (actual and/or proximate), and damage is demonstrably critical in setting the tone of a case, let alone effectuating Negligence Recovery.

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Mallor,J.,Barnes,J.,Bowers,T.,&Langvardt,A.(2009).BusinessLawtheEthical, global,andECommerceEnvironment(14ed.).Irwin:McGrawHillPrimis. RepublicofFrancev.UnitedStates,290F.2d395(5thCir.April16,1961). White,G.E.(1980,2003).TortLawinAmerica:AnIntellectualHistory.NewYork: OxfordUniversityPress,Inc.

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