Tort
Tort is sometimes viewed as the causes of action which are not defined in other areas such as contract or fiduciary law. However, tort and contract law are similar in that both involve a breach of duties, and in modern law these duties have blurred and it may not be clear whether an action "sounds in tort or contract"; if both apply and different standards apply for each (such as a statute of limitations), courts will determine which is the "gravamen" (the most applicable). Circumstances such as those involving professional negligence may involve both torts and contracts. The choice may affect time limits or damages, particularly given that damages are typically relatively limited in contract cases while in tort cases noneconomic damages such as pain and suffering may be awarded. Punitive damages are relatively uncommon in contractual cases versus tort cases. However, compensation for defective but not unsafe products is typically available only through contractual actions through the law of warranty.
Tort
Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. Although credited as appearing in the United States in "Brown v. Kendall", the later Scottish case of "Donoghue v Stevenson" [1932] AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions. In "Donoghue", Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence. The elements in determining the liability for negligence are:
In certain cases, negligence can be assumed under the doctrine of "res ipsa loquitur" (Latin for "the thing itself speaks"); particularly in the United States, a related concept is "negligence per se".