1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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
13. 13. ACTIONABLE NEGLIGENCE