Claims Of Negligence

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A look into different kinds of negligence claims.

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Claims Of Negligence

  1. 1. Claims of Negligence BLR 202 October 9, 2008
  2. 2. There are many aspects to starting a business that it can often be overwhelming and sometimes deterring. However, if one does succeed in starting a business, there is one area that should receive the utmost attention and that is the area of negligence claims and how to avoid them. Businesses need to do everything in their power to keep away from all lawsuits whatsoever, although all the preparation in the world cannot guarantee freedom of lawsuits. In order to deter negligence claims whenever possible it is necessary to understand what they are, how they arise, and what needs to be proven. People can commit a negligence tort and not even have had any intent on doing so. According to Roger Meiners, Al Ringleb, and Frances Edwards, authors of The Legal Environment of Business, “Torts based on negligence protect people from harm from others’ unintentional but legally careless conduct.” (Meiners, Ringleb, and Edwards, 127) Some examples of negligence include a doctor taking off the wrong arm during a surgery, not having enough supervision at a daycare resulting in injury of a child, and simply running a red light and damaging another vehicle. In order for a plaintiff to make a claim of negligence, four elements must be proven before that can be accomplished. The elements are duty of care, breach of duty, causal connection and actual loss or harm. Due care is usually determine based on how a reasonable person would act in the situation that is involved in the negligence claim; another way to think of due care is standards of behavior. As stated by Meiners, Ringleb, and Edwards, “In determining whether a person’s conduct was negligent, the question is, what would a reasonable, qualified person have done under the same or similar circumstances?” (Meiners, Ringleb, and Edwards, 128-129) As for the doctor removing the wrong arm during surgery, most reasonable doctors, although not perfect, would have been able catch the mistake before happening. Another example would be financial consultants because they have a duty of care to their clients. Reasonable financial consultants would not share clients’ financial information with just anyone due to confidentiality, but there are a few financial consultants that may have crossed that line and committed negligence because it did harm to their clients. Breach of duty was touched on in the previous paragraph but there is another element to the breach of duty definition that should be explained. Other than an act causing the breach, an omission, lack of an act, can also be a breach of duty. For example, if there is a puddle of water in a store where I am shopping, there is no caution sign or tape around it, and I slip in it, the store would be guilty of not acting. They owe me a duty of care because there store should be inviting and safe to customers and they failed to do something about the water puddle to warn me of the possible danger. Some consumers have recently been trying to claim that cell phones are the cause of brain cancer. However, a recent article, Cell Phones and Cancer: More Research Needed, written by Olga Khariff, is about, “a handful of lawmakers and physicians were airing concerns over a different would-be danger: prolonged use of cell phones. Their conclusion is that more
  3. 3. research is needed, especially when it comes to kids.” (Khariff, Business Week) The article also addressed the fact that no causal connection between the cell phones and brain cancer have been found based on scientific studies. Therefore, when dealing with a negligence claim, causal connection must be determined as part of the negligence performed. There are three types of causation that can be used in a case, Res Ipsa Loquitur, Cause in Fact, and Proximate Cause. Res Ipsa Loquitur means, “the thing speaks for itself” (Meiners, Ringleb, and Edwards, 130) and deals with incidents that are obvious to anyone with common sense. Incidents such as a boat running a land and hitting someone or a racecar flying off the track into a spectator are obvious Res Ipsa Loquitur claims but one that might not be thought of initially is about a sponge being left in a patient. In, The limited use of inferred negligence in medical cases, written by Russell G. Thornton, JD, “Res ipsa loquitur has been found to apply in circumstances in which a surgical sponge or other operative equipment has been left inside the patient. Schorlemer v. Reyes involved a sponge left in the patient's abdomen during surgery to remove an ovary, fallopian tube, and appendix. Despite the testimony of 2 assisting nurses that the sole responsibility for removal of surgical sponges rested with them, the court held that res ipsa loquitur applied against the surgeon. This decision was based on 3 factors. First, the surgeon testified that the sponges were under his management and control during the surgery. Second, the plaintiffs' expert testified that the surgeon had control of the sponges during the procedure; that, even though nurses perform the ancillary function of sponge counting, ultimate responsibility for sponge removal lies with the surgeon; and that the surgeons generally follow a personal routine of insertion and removal to ensure that no sponge is left behind. Third, the defense expert testified that it was the responsibility of the surgeon to make sure that everything was removed from the patient (23).” (Thornton, PubMed Central) Therefore, one can see how tedious the breakdown of the causal connection can be and how important it is to determine it in the case of negligence. Cause in Fact is another section of causation that can be used in the case of negligence. If the injury created would not have otherwise been done without the action or omission of the defendant that would be cause in fact. If a parent neglects to feed their young children and the kids become malnourished, the parent is to blame because the children would have had ample nourishment if not for the parents’ actions. The third possible element of causation is called Proximity Cause, which, according to Meiners, Ringleb, and Edwards, “limits liability to consequences that bear a reasonable relationship to the negligent conduct.” (Meiners, Ringleb, and Edwards, 130) For example, if someone had a candle burning in their house and an earthquake occurred, this place not in an earthquake zone, and the house caught on fire and caused all the neighboring houses to burn, the
  4. 4. person who had the candle burning should not receive all the consequences because the chain of events was not foreseeable. The last element, loss or harm, to have a negligence claim is common sense, there has to have been an actual loss of or harm done to the victim. Hypothetically, I work for a car manufacturer and I will let them know of steps they can take to avoid negligence claims whenever possible. Attempt to prevent foreseeable injury, avoid defects in manufacturing, warn consumers of the risk or hazards of the product, and avoid design defects are the actions I can think of that would help deter negligence lawsuits. My company should invest in an accident simulator program that can program a vehicle’s specifications into the software and create different scenarios to help determine possible foreseeable incidents that might happen with that kind of vehicle. Therefore, if it is found that a certain SUV’s center of gravity is too high and will likely have a high risk of rollover, it would be advisable for my company to suspend making this kind of vehicle or make some adjustments to the design. As far as defect in manufacturing are concerned, I believe that my company should hire more inspectors to evaluate the products coming off the line. Thus, if a defect that would cause harm to the consumer is found, it might be able to be fixed more quickly and cheaply than if a recall were to be put into effect. As much as my employer may try to make their vehicles 100% safe, we all know that is impossible. I suggest that they take ample steps in addressing all the possible risks of the vehicles in a manner that is understood by the average consumer of their vehicles. For example, if most of the people in America speak English and Spanish, and the USA is where most of the vehicles are sold, it would be wise to make the car labels readable in English and Spanish writing. Finally yet importantly, if, when evaluating the designs of the vehicles, someone notices a defect, by all means, they should do all that they can to fix it. To put it in perspective, say my employer is aware that one of their vehicles contains a windshield that is cheaper but is not as safe as the alternative, it could be more costly in the end than not replacing it now. Especially if someone sues the company and found out that they were aware of the defect, it reduces my employers’ chances of winning the lawsuit. Ultimately, the cost will outweigh the benefits.
  5. 5. Bibliography Khariff, Olga. "Cell Phones and Cancer: More Research Needed." Technology. 26 Sep 2008. Business Week. 9 Oct 2008 http://www.businessweek.com/technology/content/sep2008/tc20080925_833994.htm? chan=top+news_top+news+index+-+temp_technology>. Meiners, Roger E., Al. H. Ringleb, and Frances L. Edwards. The Legal Environment of Business. 10th. Mason, OH: South -Western Cengage Learning, 2009. Thornton, Russell G.. "The limited use of inferred negligence in medical cases." Baylor University Medical Center. Apr 2002. PubMed Center. 9 Oct 2008 <http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1276519>.
  6. 6. Bibliography Khariff, Olga. "Cell Phones and Cancer: More Research Needed." Technology. 26 Sep 2008. Business Week. 9 Oct 2008 http://www.businessweek.com/technology/content/sep2008/tc20080925_833994.htm? chan=top+news_top+news+index+-+temp_technology>. Meiners, Roger E., Al. H. Ringleb, and Frances L. Edwards. The Legal Environment of Business. 10th. Mason, OH: South -Western Cengage Learning, 2009. Thornton, Russell G.. "The limited use of inferred negligence in medical cases." Baylor University Medical Center. Apr 2002. PubMed Center. 9 Oct 2008 <http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1276519>.

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