Essay Sample on Kylie's Nanny Tort of Negligence

Introduction

A tort is a private or civil wrongdoing committed against a person(s), and/or their property which causes harm for which compensation is justifiable (Johnson, 2015, p. 22). Negligence in tort law means failure to act reasonably to persons who are your duty, and consequently causing them physical, emotional or economic harm (Johnson, 2015, p.47).

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Muhametaj (2017) states that in order to have a prima facie case, the plaintiff should be able to prove the defendant owed them duty of care, the defendant failed to exercise reasonable care, the claimant suffered damages as a result of the defendants carelessness and connection between the negligence and the harm suffered (p. 30).

Duty of Care

A defendant's duty of care towards a claimant is the first thing that is established in any torts of negligence (Owen, 2007, p. 1675). It defines to what extent someone will be held accountable for their harmful misdeeds. Owen (2007) further states that the element of duty draws heavily from fairness, justice, and social policies (p.1676). It obliges and channels behavior in a socially conventional manner and it is used to judge how appropriately people behaved in the aftermath of an event.

Kylie, undeniably, had a duty to act in a manner that did not put her nanny in an unreasonable risk of harm. She had to provide the nanny with the right baby equipment which should be safe to both the baby and the sitter. These include providing a safe environment for the nanny and not provide defective baby toys and equipment. In this case, Kylie provided her nanny with a new and a very expensive pram which had been a gift from her mother, Kris. Kylie had a duty to ensure that the pram would not hurt her nanny the plaintiff (Nanny) successfully proves that the defendant had a duty of care towards her. However, with the quality of the equipment, she was provided with (a high-quality pram- new and very expensive), the defendant did not anticipate any harm would come in the litigant's way.

Breach of Duty

After proving the defendant had a duty towards the litigant, the second thing to be considered is whether the defendant was in breach of duty. Breach of duty occurs when an actor exposes another to an unreasonable, foreseeable risk of harm. Muhametaj (2017) says that breach of duty is involved deliberations on whether the acts, or omissions, which the claimant complains of gave rise to liability (p. 31). It goes to see whether the accused satisfied law requirements when undertaking a particular activity under contention (Muhametaj, 2017, p. 31). There has to be a preexisting standard legal requirement set to avoid imposing undue risks of harm to person(s) and their property. To be guilty of negligence, one has to have been found acting without undue care for the safety of others (Owen, 2007, p 1677).

Owen(2007) further notes that to determine the defendant's actions and choices were negligent or non-negligent does not depend that much on their efforts to be vigilant and careful(p. 1677).

Kylie cannot be held in breach of duty towards her nanny for the following reasons. The pram she gave her nanny was of new, and of her quality. It had no reports of being defective. Kylie could not possibly know that the pram cable would snap and cause the plaintiff injuries. The pram's brake cable snapped, not because of Kylie's carelessness but because of the manufacturer's fault. Furthermore, Kylie could not possibly be more careful more than she had been. She did not do anything malicious, nor did she fail to do anything which resulted in her nanny's injuries.

Causation

Before the defendant can be assigned responsibility for the plaintiff's harm, the plaintiff has to prove without any reasonable doubt that the defendant's negligence caused him harm. Causation proves that the injury suffered by the plaintiff would not have happened had the defendant been more careful (Owen, 2007, p. 1679). A defendant will only be liable if his/her conduct was the actual cause or the proximate cause for the injuries underwent by the litigant (Johnson, 2015, p. 50).

Defendants are therefore protected from liabilities of their negligence if they appear too far-fetched and where the defendant's breach of duty and the damages caused are too remote from each other, possibly because of third-party interference (Muhametaj, 2017, p.32). Owen (2007) further states to prove causation, the plaintiff must also link his woes to the defendant's negligence (p.1679). Liability extends only to injuries that can be reasonably foreseen. Thus if the defendant had no reason to believe that the plaintiff would suffer that particular injury then he/she will not be liable.

The nanny lost an opportunity to go for a family vacation because she was in the hospital having her hand tended to. The nanny, therefore, proves proximate cause for her damages.

The Injuries of the Plaintiff

This is the last element of the negligence claim is harm. It shows the injuries suffered by the claimant as a result of the defendant's carelessness. The defendant is required to compensate the litigant for their injuries. The compensation for harm inflicted by the defendant is the underlying restitution and deterrent objective of the negligence cause of the cause. The law requires the negligent defendant to compensate the plaintiff's loss caused by the defendant's lack of foresight and care (Owen, 2007, p. 1684).

The plaintiff did lose a chance to go on vacation with her family. The vacation had cost her PS 4,000. Should Kylie be found guilty of negligence, this is the amount she will pay as compensation to her nanny.

In this case, Kylie might employ the "Assumption of Risk" and "Contributory Negligence" negligence defense. She can successfully argue that the nanny voluntarily placed herself in that situation by taking out the pram without ensuring that it was in good working conditions. Given her career as a nanny, Kylie can argue that the plaintiff was negligent; she should have used her expertise to know the tram had faulty parts and therefore not fit to be near a baby. The defendant will not compensate the litigant if he proves without a doubt that the claimant contributed to the injury by his/her negligence. The claimant will also not be paid if the defendant shows that the litigant voluntarily placed themselves in danger.

As we have seen above, in order for a negligence claim to be successful, the litigant must prove defendant owed them the duty of care, the defendant breached their duty of care, the defendant's actions were the actual and proximate cause of the plaintiff's injury and there was harm to the plaintiff. The nanny has been unable to prove all the conjunctures; proving just three of the four requirements which are the duty of care, proximate cause, and harm. Therefore, seeking legal redress by suing Kylie under the tort of negligence will not work.

Strict Liability Tort - Nanny’s Alternative Legal Remedies

As seeing the nanny won't be successful if she sued Kylie under the tort of negligence, the nanny will have to seek alternative legal solutions for her predicament. As seeing the damage she suffered came from using faulty child equipment, then she can sue under strict liability. Strict liability tort is available for claimants who have suffered bodily harm or lost property as a result of an accident caused by using defective products (Johnson, 2007, p. 38). Johnson (2007) further states that strict liability is available in limited circumstances where the law imposes an absolute responsibility for safety on a party (p.38).

Johnson (2007) further states that a plaintiff can institute a prima facie case for strict liability by proving that the defendant's conduct falls under a category in which there is absolute responsibility for safety and the defendants conduct was actual and proximate cause for the plaintiff's injury on person or property (p. 38 and P. 39). The categories under which one claim responsibility for the safety are ultra-hazardous activities, wild animals, trespassing livestock, vicious domestic animals and defective products (Johnson, 2007, p. 39). The nanny's case can be successfully argued under the category of defective products liability.

In defective product liability, the defects recognized by the English law are manufacturing defects, design defects, and warning defects. Manufacturing defects occur when a manufacturer fails to make a product to perfection. Design defects happen when products are made to be unreasonably dangerous while warning defect arises when lack of clear warnings causes an otherwise safe product to be dangerous (Johnson, 2007, p.39). In strict products liabilities, anyone in the distribution chain can be held responsible.

The strict product liability plaintiff seeking redress for manufacturing defect must prove beyond reasonable doubt the existence of the manufacturing defect to prevail in the claim. The wound for which she was hospitalized should be used to show how the defective equipment physically hurt her hand and consequently made her miss her vacation.

Having looked at the strict liability tort, and the defective product liability, we can confidently advise the nanny, with Kris' help, to seek court redress from the retailer from whom Kris bought the pram. The pram falls under manufacturing defects. If the pram had been made to its specifications, the nanny would not have hurt her hand, and subsequently would have gone for a vacation with her family. The retailer will not claim the pram had been modified, been misused nor claim assumed risk of harm by the nanny. Johnson (2007) further clarifies that unlike in negligence liability tort, the nanny will not have to prove "duty of care" and "breach of duty elements" (p. 40)

Out of Court Solutions

There are various reasons as to why one may opt for an out of court settlement. One. It will save the plaintiff and the defendant expensive expenses on legal fees, travel and time. The plaintiff will also lose control of the case when it goes to court; the outcome of the case will be solely on the judge's ruling. It is important though to ensure that the plaintiff gets her justice, whether through the courts or out of court settlement.

The nanny is sure of winning the case but if she is unwilling of taking it to the court, then she should look for an out of court settlement with the retailer. The first step is recognizing a liability. Putting the liability in a way that clearly shows how the defendant's product harmed you is vital in ensuring the defendant is agreeable to negotiations. A well-written liability will make it less for the retailer to oppose a settlement and will force the retailer to efficient pay what is agreed.

A settlement is instituted by writing a formal settlement offer to the other party setting out the terms of the settlement. The defendant then writes an acknowledgment that they accept the terms set out by the claimant. Then both parties sign a release declaring that they have given up all claims to the dispute as a condition for the settlement. A cheque is then signed by the defendant compensating the plaintiff her damages. A settlement is achieved by negotiation and it includes effect of the settlement, the "without prejudice" status of negotiations, documentation of the settlement and settlement enforcement methods. All documents between the two parties should contain the term "with no prejudice".

The retailer will also prefer a "without prejudice" status of negotiation. Negotiations "without prejudice" mean that neither party can use the information contained therein in a court of law. The nanny should make sure she proves that the approach for settlement was made in contemplation for litigation. For the "without prejudice" status to hold, there must be genuine attempts by both th...