Business Law Assignment On Negligence

Negligence Assignment Legal framework I 1 Introduction In order to provide fair justice for the mankind different sets of law have been emerged in the history of the world. Without going further in the history it would be better to define what is law is? Vermeesch and Lindgren defines law as “ those rules established by parliaments and/ or the courts which are recognized and enforced (with physical force if necessary) by courts of law”. (1978, p. 2). There are two types of laws, contract law and tort law. However, due to the nature of the problem in the case given, in this essay one of the branches of tort law which is negligence would be discussed. Negligence is a type of tort or delict (also known as a civil wrong). However, the concept is sometimes used in criminal law as well. A rough synonym for "negligence" is negligence defnition as “ doing something which a reasonable person would not do, or the failure or neglect to do something which a reasonable and prudent person would do” (1999, p 40). The purpose of this essay is to advice the Mr. Zebediah (plaintiff) about the action he might take in the law of negligence. Furthermore, this essay analyses all the negligence essentials with definitions in relevance to the case given (see appendix). Addition to that, advices for Zebediah with reasons and relevant case authorities are mention wherever possible. Finally conclusion, bibliography and appendix are ruled below. Ismail Faizal Rasheed (RAIFD72) | 2

This paper seeks to respond to given exercises on negligence cause of action and strict liability cause of action.

1.  Exercise: What are the elements in a negligence cause of action? How is actual cause different from proximate cause? What are the defenses?

The elements in a negligence cause of action include the following: (1) There must be a duty on the part of the defendant to use ordinary care; (2) There defendant must have breached that duty required; (3) There must a causal connection that is proximate between the negligent and injury complained of by the plaintiff; and (4) There is damage done to the plaintiff (Budd v. Nixen (1971) 6 Cal 3d 195, 200).

An actual cause is different from proximate cause. The first one is not element of the cause of action for negligence while the other is an element.  For example, the actual cause may be contributory negligence of the plaintiff but such will not excuse the defendant from liability if plaintiff can prove proximate cause along with all the other elements of the cause of action.

The defenses include presentation of a proof or proofs of the absence of any or all of elements of the cause of action for negligence by defendant.

2. Exercise: What must a Plaintiff establish in a strict liability cause of action? What types of activities will cause strict liability to be imposed?

A plaintiff must establish the fact that the defendant is engaged in activity or activities which could make such defendant liable under a strict liability cause of action. There is strict liability when the plaintiff needs not prove negligence of the defendant. Thus, this makes strict liability different from common law negligence.

The activities that could produce strict liabilities include placing a defective product in the market by the manufacturer, which could produce injuries to users who do not need to prove negligence.  Another activity is selling by wholesalers, distributors or retailers of the defective product as placed by the manufacturer above (Codling v. Paglia, 32 NY2d 330, 335).

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