when someone is struck by lightning, the law cannot allocate compensation because there is no party at fault.<">

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Concept of Fault

Posted on:10/4/2012
The concept of fault is central to the development of legal theories of tort. Ultimately, the resolution of a personal injury suit involves the question of a transfer of wealth from the defendant to the plaintiff.


 

If someone suffers an injury or a loss, should there be a source of compensation? The law looks to the cause of the injury. If caused by an “act of God,” as when someone is struck by lightning, the law cannot allocate compensation because there is no party at fault.

 

In contrast, if the cause of the injury can be attributed to human forces, allocation of liability may be appropriate. At that point a question of fairness arises. Would it be fair for this person or this organization to surrender some of its resources to the injured party? An affirmative answer to this question is easiest when the injury can be shown to have been caused directly by wrongful conduct of another party to an injured party who is utterly blameless. Unfortunately, causation and blameworthiness are frequently obscure or difficult to prove.

 

Res ipsa is used to infer negligence, specifically a failure of due care, when it would appear that the injury would not have occurred if due care had been exercised. Practically speaking, the doctrine of res ipsa loquitur is merely a device to get the issue of negligence to the jury.


  
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