Law Suit Essay, Research Paper
The topic that will be discussed in this paper is negligence. Negligence is any conduct which creates an unreasonable risk of foreseeable harm to another. There has to be risk involved in the case in order for there to be negligence. Therefore, if there is no risk involved, then there is no case for negligence. There are four basic elements of negligence that will be discussed in this paper. A plaintiff must prove in a court of law all four of the elements in order to win the case. The four elements of negligence are duty of care, breach of duty, causation, and injury. Also, there are four defenses of negligence that will be talked about in this paper. They are contributory negligence, assumption of risk, intervening causes, and foreseeabillity. Lastly, in this paper, the special negligence doctrine of res ipsa loquitur will be examined. Throughout this paper the elements, doctrines, and defenses of negligence will be studied, and also how they apply to several different legal cases that have been brought to various courts in the United States.
The first two elements that will be discussed are duty of care and breach of the duty to care. Duty to care means that people in today’s society are free to act as they please, but as long as it does not infringe on another person’s interests (West’s 99). Breach of duty is not as clearly defined as duty of care. It is usually determined by a case-by case basis. If a person acts in an unacceptable manner, for example, losing their temper in public or does not act in a prudent manner, then they could be charged with breach of duty. Breach of duty does not only pertain to domestic situations, but also in one’s occupation. If one is a landowner, then he must have reasonable care for the individual visiting his property or living on his property. If the person is harmed, then the landowner could be charged with breach of duty. If one is a professional, such as a dentist, physician or psychiatrist, he or she are required to have some minimum level of special knowledge (99). If a professional violates duty of care, then they can be charged with malpractice. For example, In the case of Koury Vs Follo which was brought before the North Carolina Supreme Court, Koury filed a suit against her physician for negligent treatment of her infant daughter. The physician gave the infant double the nessesscary dosage, causing the infant to lose her hearing permanently. The physician acted in negligence by giving the infant the wrong amount of dosage, and by giving her medicine that said ” not for pedeactric use”. The physician did not use his expertise, and did not perform his duty of care for his patient. The jury found in favor of the plaintiffs, because the physician acted in a negligent manner (158 S.E.2d 548). Also, retailers and other types of firms must obey a duty of care. For example, there was a case in which a man sued Wal-Mart for negligence. The name of the case was ” Martin vs. Wal-Mart Stores Inc.”. In this case, Harlod Martin was walking down an aisle of shotgun shells. The shotgun shells were stacked upon the aisle shelves, but some had fallen down and were left there lying on the floor. The employees had failed to clean the shells up. While Mr. Martin was walking, he slipped and fell on the fallen shells. This is where the third element of negligence comes in, and that is cau