Negligence Law in Present Day Term Paper

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Tort of Negligence with regards to business law. The discussions will particularly focus on areas that affect business decisions and any underlying law principles that have any effect on the same. There is also a section that looks at some of the sources of distrust of law.

Negligence primarily means an action that creates an unreasonable risk, or in other words the failure of an individual to act normatively, as a rational person would. The standard that is used to determine if an individual is guilty of the offense of negligence is by asking ourselves whether a careful person would have done the same. In most cases it is often an issue of whether or not there was an act of negligence or conversely whether or not there was compliance or conformity of one's act to those of a reasonable man (Negligence-As a Matter of Law or a Question of Fact -Contributory Negligence of Customers).

However, there are some cases where a legislation of substantive law exists, that prescribe an actual conduct as 'negligence' or the minimum precautions that conform to the standard of the reasonable action. Failure to adhere to these precautions, one shall be deemed to have been negligent. This is a matter of law. A fundamental issue in the application of the law of negligence is that of contributory negligence. Even though it is primarily pure negligence, it necessitates further definition (Negligence-As a Matter of Law or a Question of Fact -Contributory Negligence of Customers).

It is a matter of law that every person with a capacity to exercise normal or ordinary care for their protection will do so, and if such a person fails to act carefully and that such failure, cooperating with and concurring with the defendant's actionable negligence, contributes to the injury in the form of a proximate cause, then such a person is guilty of contributory negligence (Negligence-As a Matter of Law or a Question of Fact -Contributory Negligence of Customers).

The responsibility of exercising ordinary care so as to avoid injury entails the task of observing and being aware of potential danger. An individual is required to make sensible use of his capacity to see and hear and the intelligence to be aware of danger and conditions of risk to which he or she might be exposed. However, for one to be guilty of contributory negligence there must be awareness danger on the part of the plaintiff.

In the law of negligence, the risks considered by courts when putting in place the standard of care are the same ones taken into account when awarding damages or imposing liability. This is referred to as the "alignment principle." The subject of this paper however, is the exceptions to the principle, which will be called "misalignments." In misalignment cases, the risks considered in putting in place the standard of care are quite different from the ones for which damages are awarded or liability imposed (Port, 2011). In recent years several state courts have been challenged with the issue of whether a state's comparative negligence principles (or court precedence) should be applied or followed in instances that strict tort liability is the action basis. Theoretical and conceptual difficulties have been encountered in such cases. The courts have found most of these difficulties cannot be circumvented and thus rejected the application of comparative negligence statutes. In the majority of the cases the end result has been to reject the application of such statutes; however some of the opinions offered by the judges have been characterized by judicial improvisation and strained reasoning (Plant, 1980).

Law and Business Decisions

The highest court in the state of Maryland on Tuesday, by a 5-2 ruling, upheld a legislation that says that individuals cannot be awarded damages for harm caused in a negligence case if the court finds defendants to be only partly responsible for the harm to the aggrieved. The court of appeals declined to issue a verdict that would change the state's legislation on contributory negligence. Retired justice John Eldridge noted that efforts to change the law of contributory negligence in the state's legislature had consistently failed. The business community had waited anxiously for the court's verdict. One of the persons who were first to praise the decision was executive director of the Small Business Legal center at National Federation of Independent Business (NFIB) (Maryland's Highest Court Upholds Contributory Negligence Law). The NFIB had already filed a brief in the case arguing that the state's small businesses would be have adverse effect a time when many of the businesses were already struggling.

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Harned, in her statement had said that while it was crucial for businesses to take the necessary steps to ensure safety in their premises, abandoning the law of contributory negligence would result in more uncertainty, hence an increase in insurance premiums and a dramatic increase in baseless lawsuits against employers.

The case had been filed by James Coleman, a soccer player, who had volunteered to help coach a team of players in a program that had been sponsored by Columbia's Soccer Association in Howard County. In 2008 while Coleman was assisting the coach, he jumped up and grabbed a goal's crossbar to retrieve a ball during training. The goal was un-anchored which resulted in Coleman falling backwards and drawing the weight of the crossbar unto his face. He suffered severe facial injuries and fractures. He then filed a lawsuit against the Soccer Association of Columbia (Maryland's Highest Court Upholds Contributory Negligence Law). A jury found that the soccer association was negligent; it also found that James Coleman was also negligent, and thus the trial court announced a verdict in favor of the association.

Medical practitioners are often charged with reckless behavior in the initial summons or complaint in cases that frequently turn out to be matters of only ordinary negligence (Harris, et.al, 2006). This maneuver is often resorted to, so that the lawyer of the plaintiff can later argue that the facts he or she presented support the charge of gross negligence. Gross negligence is however an issue of degree, it is defined as behavior that shows a reckless or wanton indifference to the safety of other people. For example, it is definitely gross negligence for a pharmacist to formulate a medication or refill one's prescription when intoxicated, however, it is not a case of negligence for the pharmacist to do the same when sleep deprived. If the act of carelessness can be proven to have been to an extreme degree, then punitive damages can be given. Punitive damages are however difficult to obtain since they are defined by statutory law and also limited by it and also because they are often only given for a type of behavior or conduct that is not usual among competent practitioners.

Because the purpose of punitive damages is to so punish the offender, that he and others in his field will learn to be careful in future, courts usually reserve such kinds of damages only for the most culpable persons (Harris, et.al, 2006).

Criminal negligence by a medical practitioner is defined as an irresponsible act with battery. In the case of negligence, in contrast to criminal negligence, a patient has agreed to treatment after being informed of both the potential risks and the benefits of the treatment, i.e. after informed consent has been given. However, informed consent should never be regarded as a permission slip by doctors to behave recklessly. No person can by law permit another person to intentionally cause them harm (Harris, et.al, 2006). If an injury is the definite or expected outcome of an action or behavior and the harm significantly outweighs the intended benefit, then no amount of informed consent can by law permit such an act.

Impactful Law Principles

For one to succeed in a case of negligence, the plaintiff must fundamentally satisfy the court with the following four elements (Legal concepts: Negligence (MLS/U of A, n.d.):

1. Duty of care

2. Breach of the duty of care

3. There was loss or injury

4. Causation, which is the causal link between the act of the defendant and the injury

An individual who is a health practitioner owes his or her patients a duty. The duty of care, as it is known, encompasses knowledge, application of skill, caution and diligence when caring for patients. The standard of care is basically determined by the ordinary practice of a particular profession. The minimum expectation from a professional is that he or she lives up to acceptable and reasonable standards set for the profession. Patients also have a right to expect the same kind of standard of care from medical students who treat them. Thus, students should always be under supervision. They should only perform patient-care tasks for which they have been sufficiently trained and for which they have met the acceptable competence standards (Legal concepts: Negligence (MLS/U of A, n.d.). For negligence to be deemed to have occurred the patient must have experienced some sort of….....

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