Under the law, negligence causes damages if a plaintiff could prove that a defendant has acted negligently, which makes him suffer injury. However, before a plaintiff could claim damages from defendants, a plaintiff must suffer an injury caused by an act of negligence. In addition, this act of negligence must be reasonably foreseeable, and a plaintiff must establish a duty with a defendant.
The objective of this paper is to demonstrate whether David in case study 1 or Ella in case study 2 could recover monetary values for the injuries they suffered due to acts of negligence.
To demonstrate their cases, this paper explores an overview of negligence. The paper argues their cases with three elements of negligence, such as duty of care, reasonable foreseeability, vulnerability, breach of duty, and damages.
Negligence is a failure to exercise care towards another person, which a reasonable person could have not done under the same circumstances. Typically, negligence may result from miscalculation that leads to accidents, and property damages. Negligence may also occur because of business errors that may lead to the loss of several millions of dollars. (Kathleen, 2009).
In Tort law, negligence is defined as a breach of an obligation or failure to act similar to which a prudent person would have conducted under the same circumstances. To prove that negligence has really occurred, a plaintiff must suffer injury due to an act of negligence, and a plaintiff must be able to demonstrate that he has suffered an injury due to an act of negligence. Essentially, a deliberate act such as designing a faulty building is negligence. Under circumstances that might have caused an act of negligence, the jury determines the actual occurrence of negligence, coupled with the demonstration of a plaintiff that a defendant has actually conducted an act of negligence. (The Columbia Encyclopedia, 2004).
However, to establish that an act of negligence has really occurred, a plaintiff needs to demonstrate the elements of negligence.
Elements of negligence
This paper classifies elements of negligence as the duty of care, breach of duty, and damages. Essentially, to prove that a defendant is actually guilty of an act of negligence, the plaintiff must prove and establish these three elements of negligence. However, under a duty of care, a plaintiff
needs to establish reasonable foreseeability, and vulnerability before a convincing argument could be established that an act of negligence has really occurred. (Shestokas, 2009).
Duty of care
Under the law, there is a need to take reasonable care in one’s duty in order not to create unnecessary harm to another person. Essentially, the duty of care is reasonable care that a professional ought to apply in his duty in order not to cause unnecessary injury to another person. Essentially, every organization or ordinary individual owes a duty of care to his client or neighbor in order not to cause unnecessary injury. (Debney, 1998). The motive behind the duty of care is to protect a plaintiff from unreasonable harm. Thus, the duty of care is a procedure and a reasonable standard of conduct that a professional should implement in his duty in order to avoid harm or unnecessary injury to the client. (VideoJug, 2009).
Essentially, before an act of negligence could be established in the court, there is a need to prove that a defendant owes a duty of care to a plaintiff. Shestokas (2009) argued that there should be an existence of a duty before a duty of care could be established. Thus, the author pointed out that a medical practitioner has a duty to protect patients from any unreasonable injury.
However, the duty of care is subdivided into reasonable foreseeability and vulnerability.
To prove that an act of negligence has really occurred. A plaintiff needs to convince the jury that there is reasonable foreseeability to prevent the injury. Villiers (2009) defined reasonable foreseeability as an objective prediction of an event that a reasonable person would have foreseen. Essentially, reasonable foreseeability is a crucial concept in the law of negligence. For example, within the scope of a duty of a medical doctor, it is reasonably foreseeable that by allowing a patient to take an excessive overdose of sleeping pills, the effects could harm a patient. The illustration of a case Cooley v. Public Service Co.163 revealed a classical example of reasonable foreseeability, where a loud noise over a telephone wire made a plaintiff suffer injury. Although, a plaintiff requires proof that a defendant is reasonable enough to foresee, and prevent the injury. For example, the case between Bunting v. Hogsett revealed how reasonable foreseeability has been proven. The plaintiffs successfully proved that a driver was reasonable enough to foresee that he would collide with a train and injure passengers by negligently not paying proper attention when a train was approaching.
In addition, a plaintiff needs to prove a concept of vulnerability before an act of negligence could be established.
Vulnerability is defined as a position of reliance that exists between a defendant and a plaintiff. Essentially, certain elements ought to be proved before there is the occurrence of reliance between the two parties. For example, a plaintiff should be able to prove that he is in the position of powerless, thus he is vulnerable. Moreover, a plaintiff needs to prove that a defendant is in the position of power, and is more knowledgeable than a plaintiff. Under normal circumstances, a defendant is in a position to protect a plaintiff from unreasonable harm due to resources available to a defendant. (Harvey, 2007).
Meanwhile, the paper applies negligence, duty of care, reasonable foreseeability, and vulnerability to the case studies in the next section.
Applying negligence to case study 1
This section applies a concept of negligence to case study 1. Under the case study, it is revealed that David tripped on a piece of cleaning equipment that Emily placed on the footpath, which caused injury to David because he was engrossed with his catalog. However, David intended to recover medical expenses because of the injury he has suffered. Reviewing this incident, it is revealed that the action was not reasonably foreseeable, and before a plaintiff can prove that a defendant commits an act of negligence, a plaintiff must convince the jury that an action that causes him harm is reasonably foreseeable, which a defendant could prevent. The action that caused David to secure injury is what can be termed as coincidental harm, and “coincidental harm is not foreseeable”. (Villiers 2009, p. 129), thus, it was not an act of negligence. The injury suffered by David was “was coincidental and not systematically related to defendant’s negligence, and was hence, unforeseeable” (Villiers 2009, p. 129).
In addition, there was no proof that David was in a position of powerless and therefore vulnerable to harm. Moreover, no proof existed that Emily was in a position of power and had the ability to prevent vulnerable harm to happen to David. Thus, under these circumstances, David could not convince the court that Emily was negligent in her duty. Thus, David would not be able to recover medical expenses nor recover loss of earnings.
Applying negligence to case study 2
Under case study 2, Ella could recover her loss because an action that made Ella miss her flight was reasonably foreseeable, and the airline could prevent this act of negligence by alerting Ella a few days before the scheduled flight. Thus, the action of the airline was a classical example of negligence that caused Ella to lose a 40 million dollars business deal. In addition, there was substantial proof that Ella was in a vulnerable position because she was in a position of powerless, and the airline was in a position of power because of their knowledge about the flight schedule and maintenance issues. Thus, the airline was in a position to protect Ella from vulnerability because Ella had no knowledge of maintenance issues that made her suffer the loss of a $40 million business deal. Given the above reasons, Ella could convince the jury that the airline acted negligently, which made her suffer an injury, thus, she could recover her loss.
Another element of negligence that can make Ella win her case is a breach of duty.
Breach of duty
A breach of duty is defined as an act to conduct with a reasonable standard in duty in order to prevent an injury to another person. However, Mulligan argued, “a breach of duty occurs when a party fails to carry out the functions of his or her office or position”. (2008, p.1). Under tort law, a plaintiff requires to prove that a duty has been established between him and a defendant. Thus, by establishing duty between a plaintiff and a defendant, there is a need to establish that this duty has been breached and caused harm to a plaintiff. Thus, breach of duty is a classical example of negligence, which may bring legal action against anyone. In addition, a breach of duty could be levied against a defendant if his conduct could bring injury to a plaintiff. (Villiers 2009, Shestokas, 2009).
Thus, a plaintiff can claim damages if he could convince the court that a breach of duty makes him suffer injury.
Under the law, damages are the monetary value that a court could award for breaking civil law. In tort law, a court could ask a plaintiff to pay a certain sum of money in order to correct him for wrongdoing such as negligence. The essence of damages is to reward a plaintiff because of personal injury, or loss that he has suffered. However, before a plaintiff could claim damages, he or she must suffer injury, which should be proved before the court. For the purpose of this paper, “damages are out of pocket expenses that a defendant incurs as a result of having to deal with the injuries or property loss caused by the Plaintiff”. (Wendell 2009, p.1).
Applying breach of duty and damages to case study 1
By applying a breach of duty and damages to case study 1, it is revealed that David could not convince the court that Emily has breached a duty. From a previous section, it is revealed that a plaintiff must prove that he has established duty with a defendant, and a defendant has breached this duty. Looking at the case of David, there was no proof that Emily had established any duty with David. In fact, Emily had never established duty with David, thus Emily could never breach duty that she had never established. Thus, David could not claim any damages from Emily nor from Wipeaway Pty Ltd, which was a company Emily was working. The injury that David suffered was a coincidental injury, which was not foreseeable. Moreover, David was also engrossed with his catalog and he was not concentrating on where he was going.
Applying breach of duty and damages to case study 2
In case study 2, Ella had actually established duty with the airline because she called a representative of the airline to book a flight for a business deal in Australia. Thus, she had in mind that she would travel for her business deal on the stipulated date. Meanwhile, the airline had negligently breached a duty that it had established with Ella by carrying out maintenance issues at the specific time, that Ella scheduled a flight to Australia. Thus, the airline had committed an act of negligence by breaching the care of duty that made Ella suffer a financial loss. Ella could claim damages to recover her financial loss because the action of the airline that delayed Ella from taking her scheduled flight was reasonably foreseeable, which could be prevented by contacting Ella several hours before the scheduled flight. Thus, Ella could recover her financial loss, if she sues the airline,
This paper reveals the classical cases of negligence under which a plaintiff could claim damages, and under which a plaintiff could not claim damages. This paper shows that Ella could claim damages because Ella missed the flight that caused her to lose a $40 million business deal. The action of the airline was reasonably foreseeable and the airline could prevent the injury that Ella had suffered. However, the paper argues that David could not convince the jury that Emily acted negligently in order to claim damages. The harm that David suffered was not caused by an act of negligence; moreover, Emily had never established any duty with David.
List of References
Debney, P.J. 1998, Duty of Care: Common Law of Negligence, Student Activities, Safety Association, U.K.
Harvey, C. 2007, Foundation of Australian Law, Chapter 6- Tort of Negligence, 2nded, Tilde University Press, Australia.
Kathleen, L. 2009, Negligence, The people law dictionary, USA, Publisher Fine Communication.
Mulligan, B. 2008, Breach of Duty, Asbestos.net, Inc, U.K.
Shestokas, D. J, 2009, The Law of Negligence Duty, Breach of Duty, Injury & Causation, U.K, Suite 101.
The Columbia Encyclopedia, 2004, Negligence, 6th ed, Columbia University Press, USA.
Villiers, M. D. 2009, Reasonable Foreseeability in Information Security Law: A Forensic Analysis?, Social Science Electronic Publishing, Inc.
VideoJug, 2009, What is duty of care of tort law, VideoJug Corporation Limited, UK.
Wendell, C. 2009, What are Damages?, A Brief Introduction to the Law of Damages, Suite 101, U.K.