Claims Of Negligence

Claims of Negligence
BLR 202
October 9, 2008

There are many aspects to starting a business that it can often be overwhelming and
sometimes deterring. However, if one does succeed in starting a business, there is one area that
should receive the utmost attention and that is the area of negligence claims and how to avoid
them. Businesses need to do everything in their power to keep away from all lawsuits
whatsoever, although all the preparation in the world cannot guarantee freedom of lawsuits. In
order to deter negligence claims whenever possible it is necessary to understand what they are,
how they arise, and what needs to be proven.
People can commit a negligence tort and not even have had any intent on doing so.
According to Roger Meiners, Al Ringleb, and Frances Edwards, authors of The Legal
Environment of Business, “Torts based on negligence protect people from harm from others’
unintentional but legally careless conduct.” (Meiners, Ringleb, and Edwards, 127) Some
examples of negligence include a doctor taking off the wrong arm during a surgery, not having
enough supervision at a daycare resulting in injury of a child, and simply running a red light and
damaging another vehicle. In order for a plaintiff to make a claim of negligence, four elements
must be proven before that can be accomplished. The elements are duty of care, breach of duty,
causal connection and actual loss or harm.
Due care is usually determine based on how a reasonable person would act in the
situation that is involved in the negligence claim; another way to think of due care is standards of
behavior. As stated by Meiners, Ringleb, and Edwards, “In determining whether a person’s
conduct was negligent, the question is, what would a reasonable, qualified person have done
under the same or similar circumstances?” (Meiners, Ringleb, and Edwards, 128-129) As for
the doctor removing the wrong arm during surgery, most reasonable doctors, although not
perfect, would have been able catch the mistake before happening. Another example would be
financial consultants because they have a duty of care to their clients. Reasonable financial
consultants would not share clients’ financial information with just anyone due to confidentiality,
but there are a few financial consultants that may have crossed that line and committed
negligence because it did harm to their clients.
Breach of duty was touched on in the previous paragraph but there is another element to
the breach of duty definition that should be explained. Other than an act causing the breach, an
omission, lack of an act, can also be a breach of duty. For example, if there is a puddle of water
in a store where I am shopping, there is no caution sign or tape around it, and I slip in it, the store
would be guilty of not acting. They owe me a duty of care because there store should be inviting
and safe to customers and they failed to do something about the water puddle to warn me of the
possible danger.
Some consumers have recently been trying to claim that cell phones are the cause of
brain cancer. However, a recent article, Cell Phones and Cancer: More Research Needed,
written by Olga Khariff, is about, “a handful of lawmakers and physicians were airing concerns
over a different would-be danger: prolonged use of cell phones. Their conclusion is that more

research is needed, especially when it comes to kids.” (Khariff, Business Week) The article also
addressed the fact that no causal connection between the cell phones and brain cancer have been
found based on scientific studies. Therefore, when dealing with a negligence claim, causal
connection must be determined as part of the negligence performed. There are three types of
causation that can be used in a case, Res Ipsa Loquitur, Cause in Fact, and Proximate Cause.
Res Ipsa Loquitur means, “the thing speaks for itself” (Meiners, Ringleb, and Edwards,
130) and deals with incidents that are obvious to anyone with common sense. Incidents such as a
boat running a land and hitting someone or a racecar flying off the track into a spectator are
obvious Res Ipsa Loquitur claims but one that might not be thought of initially is about a sponge
being left in a patient. In, The limited use of inferred negligence in medical cases, written by
Russell G. Thornton, JD,
“Res ipsa loquitur has been found to apply in circumstances in which a surgical
sponge or other operative equipment has been left inside the patient. Schorlemer v.
Reyes involved a sponge left in the patient's abdomen during surgery to remove an ovary,
fallopian tube, and appendix. Despite the testimony of 2 assisting nurses that the sole
responsibility for removal of surgical sponges rested with them, the court held that res
ipsa loquitur applied against the surgeon. This decision was based on 3 factors. First,
the surgeon testified that the sponges were under his management and control during the
surgery. Second, the plaintiffs' expert testified that the surgeon had control of the
sponges during the procedure; that, even though nurses perform the ancillary function of
sponge counting, ultimate responsibility for sponge removal lies with the surgeon; and
that the surgeons generally follow a personal routine of insertion and removal to ensure
that no sponge is left behind. Third, the defense expert testified that it was the
responsibility of the surgeon to make sure that everything was removed from the patient
(23).” (Thornton, PubMed Central)
Therefore, one can see how tedious the breakdown of the causal connection can be and how
important it is to determine it in the case of negligence.
Cause in Fact is another section of causation that can be used in the case of negligence. If
the injury created would not have otherwise been done without the action or omission of the
defendant that would be cause in fact. If a parent neglects to feed their young children and the
kids become malnourished, the parent is to blame because the children would have had ample
nourishment if not for the parents’ actions.
The third possible element of causation is called Proximity Cause, which, according to
Meiners, Ringleb, and Edwards, “limits liability to consequences that bear a reasonable
relationship to the negligent conduct.” (Meiners, Ringleb, and Edwards, 130) For example, if
someone had a candle burning in their house and an earthquake occurred, this place not in an
earthquake zone, and the house caught on fire and caused all the neighboring houses to burn, the

person who had the candle burning should not receive all the consequences because the chain of
events was not foreseeable. The last element, loss or harm, to have a negligence claim is
common sense, there has to have been an actual loss of or harm done to the victim.
Hypothetically, I work for a car manufacturer and I will let them know of steps they can
take to avoid negligence claims whenever possible. Attempt to prevent foreseeable injury, avoid
defects in manufacturing, warn consumers of the risk or hazards of the product, and avoid design
defects are the actions I can think of that would help deter negligence lawsuits.
My company should invest in an accident simulator program that can program a vehicle’s
specifications into the software and create different scenarios to help determine possible
foreseeable incidents that might happen with that kind of vehicle. Therefore, if it is found that a
certain SUV’s center of gravity is too high and will likely have a high risk of rollover, it would
be advisable for my company to suspend making this kind of vehicle or make some adjustments
to the design.
As far as defect in manufacturing are concerned, I believe that my company should hire
more inspectors to evaluate the products coming off the line. Thus, if a defect that would cause
harm to the consumer is found, it might be able to be fixed more quickly and cheaply than if a
recall were to be put into effect.
As much as my employer may try to make their vehicles 100% safe, we all know that is
impossible. I suggest that they take ample steps in addressing all the possible risks of the
vehicles in a manner that is understood by the average consumer of their vehicles. For example,
if most of the people in America speak English and Spanish, and the USA is where most of the
vehicles are sold, it would be wise to make the car labels readable in English and Spanish
writing.
Finally yet importantly, if, when evaluating the designs of the vehicles, someone notices
a defect, by all means, they should do all that they can to fix it. To put it in perspective, say my
employer is aware that one of their vehicles contains a windshield that is cheaper but is not as
safe as the alternative, it could be more costly in the end than not replacing it now. Especially if
someone sues the company and found out that they were aware of the defect, it reduces my
employers’ chances of winning the lawsuit. Ultimately, the cost will outweigh the benefits.

Bibliography
Khariff, Olga. "Cell Phones and Cancer: More Research Needed." Technology. 26 Sep 2008. Business Week. 9 Oct
2008
http://www.businessweek.com/technology/content/sep2008/tc20080925_833994.htm?
chan=top+news_top+news+index+-+temp_technology>.
Meiners, Roger E., Al. H. Ringleb, and Frances L. Edwards. The Legal
Environment of Business. 10th. Mason, OH: South
-Western Cengage Learning, 2009.
Thornton, Russell G.. "The limited use of inferred negligence in medical cases."
Baylor University Medical Center. Apr 2002. PubMed Center. 9 Oct 2008
<http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1276519>.

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