Jong's Report on Risk Management: Basic Law of Negligence
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The Law of Negligence Loreto “Jong” Dumlao Azores, Jr. Polytechnic University of the Philippines, Graduate School DBA 737 Risk Management & Development 1 st Semester 2014-2015 Dr. Rodolfo De Lara Professor
Jong's Report on Risk Management: Basic Law of Negligence
1. The Law of Negligence Loreto Jong Dumlao Azores, Jr.
Polytechnic University of the Philippines, Graduate School DBA 737
Risk Management & Development 1st Semester 2014-2015 Dr.
Rodolfo De Lara Professor
2. What is ACTIONABLE NEGLIGENCE? The breach or nonperformance
of a legal duty, through neglect or carelessness, resulting in
damage or injury to another.
http://thelawdictionary.org/actionable-negligence/ ACTIONABLE
NEGLIGENCE (Black's Law Dictionary)
3. To succeed in a negligence action the claimant must prove
three things: 1 that the defendant owed him a duty of care; 2 that
the defendant was in breach of that duty ; and 3 that the claimant
suffered damage caused by the breach of duty, which was not too
remote. The defendant may raise certain defences to the action. The
most important defences are that the claimant consented to run the
risk of the injury ( volenti ) or that the defendant was
contributorily negligent. www.mylawchamber.co.uk/cooke
4. Vicarious Liability/ Imputed Negligence A legal doctrine
that assigns liability for an injury to a person who did not cause
the injury but who has a particular legal relationship to the
person who did act negligently. It is also referred to as imputed
Negligence. Legal relationships that can lead to imputed negligence
include the relationship between parent and child, Husband and
Wife, owner of a vehicle and driver, and employer and employee.
Ordinarily the independent negligence of one person is not
imputable to another person.
http://legal-dictionary.thefreedictionary.com/Vicarious+Liability
5. Respondeat Superior Latin, Let the master answer. A common-
law doctrine that makes an employer liable for the actions of an
employee when the actions take place within the scope of
employment.
http://legal-dictionary.thefreedictionary.com/Respondeata+Superior
6. Strict Liability: Sometimes called absolute liability, is
the legal responsibility for damages, or injury, even if the person
found strictly liable was not at fault or negligent. Strict
liability has been applied to certain activities in tort, such as
holding an employer absolutely liable for the torts of her
employees, but today it is most commonly associated with
defectively manufactured products. In addition, for reasons of
public policy, certain activities may be conducted only if the
person conducting them is willing to insure others against the harm
that results from the risks the activities create. (without having
to prove negligence) for damages due to possession and/or use of
equipment, materials or possessions which are inherently dangerous
such as explosives, wild animals, poisonous snakes, or assault
weapons. This is analogous to the doctrine of res ipsa loquitur in
which control, ownership and damages are sufficient to hold the
owner liable even without proof of specific negligent acts or
omissions.
7. Protected Interests Civil Actions are normally identified by
the particular interest of the claimant which is protected: for
example, defamation protects interests in reputation, and nuisance
protects a persons use and enjoyment of land. Negligence, on the
other hand, protects a number of interests and the only unifying
factor is the defendants conduct, which must be labelled as
negligent if liability is to arise. Three interests can be
identified as being protected by the law of negligence. These are:
protection against personal injury, damage to property and economic
interests. Economic losses consequential on damage to the person
and damage to property may also be recovered.
8. Defenses to Negligence Claims To successfully defend against
a negligence suit, the defendant will try to negate one of the
elements of the plaintiff's cause of action. Three of the most
common doctrines are contributory negligence, comparative fault,
and assumption of risk. You may not be found entirely liable if the
other party also was negligent.
http://injury.findlaw.com/accident-injury-law/defenses-to-negligence-claims.html#sthash.emCBDy3N.dpuf
9. Contributory Negligence Contributory negligence occurs when
a plaintiff's conduct falls below a certain standard necessary for
the plaintiff's protection, and this conduct cooperates with the
defendant's negligence in causing harm to the plaintiff. This means
the plaintiff most likely would have avoided injuries had he or she
not also been negligent. An exception to the contributory
negligence defense is "last clear chance," when the defendant could
have avoided causing injury by using ordinary care. (A pedestrian
crosses the street even though the "don't walk" sign is clearly
visible. A motorist who has the right- of-way but is distracted by
her cell phone strikes and injures the pedestrian. Since the
motorist could have avoided striking the pedestrian had she used
ordinary care, she can still be found liable.)
10. Comparative Negligence The doctrine of comparative
negligence reduces a plaintiff's recovery by the percentage in
which the plaintiff is at fault for his or her damages. The three
main types of comparative negligence are: 1. Pure: Plaintiff is
awarded a percentage of the damages for which defendant is
responsible. 2. Modified: Plaintiff is awarded damages only if his
or her negligence is equal to or less than the defendant's
negligence. 3. Slight-Gross: Plaintiff is awarded damages only if
his or her negligence is considered "slight" and the defendant's
negligence is "gross."
11. Assumption of Risk When a plaintiff assumes the risk
involved in an obviously dangerous activity but proceeds to engage
in the activity anyway, he or she may not be able recover damages
for injuries. In order for this doctrine to apply, the plaintiff
must have actual, subjective knowledge of the risk involved in the
activity. The plaintiff must also voluntarily accept the risk
involved in the activity. The assumption of risk defense would not
apply to any additional, unknown dangers.
12. Guest Statute A state law which sets standards of care by
the driver of a car to a non-paying passenger. Although state laws
vary, the basic concept is that the social passenger can bring suit
for negligence against the driver only for gross negligence if the
driver could have foreseen that his/her actions or car could put
the rider in great peril. Examples: driving while drunk, going far
over the speed limit, playing "chicken", taking chances, driving a
car knowing the brakes are faulty, or particularly continuing the
reckless driving after the passenger has asked the driver to stop
or asked to be let out.
http://legal-dictionary.thefreedictionary.com/guest+statute