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Doctrine of negligence per se Essay

Issue:

Whether or not the doctrine of negligence per se should be made to apply in the case at bar?

Rule:

The legal doctrine of “negligence per se” considers an act to be negligent if the same violates a statute or a regulation. For the rule to apply, it must be shown that the person violated a law, the law must be concerned with public safety, the act caused an injury for which the law was designed to prevent and the victim was within the area of the peril.

           

Analysis:

For the doctrine to apply, it must be shown that the four elements of negligence per se exist in the situation. In the case at bar, the ammonium nitrate fertilizer cannot be considered as explosive since its primary purpose or use is that of promoting growth in plants. Ammonium nitrate should not be considered as explosive because it does not primarily function for explosion. It is therefore not covered by law on explosives.

Conclusion:

Negligence per se is not applicable in the case at bar since ammonium nitrate fertilizer is not a prohibited chemical compound that may be classified as explosion. There is no statute prohibiting its manufacture and sale.

Issue:

Whether or not the inaction of the manager of Whataburger was the proximate cause of Rockwell’s injuries?

Rule:

Proximate cause is an incident that is adequately connected to harm and perceived to be the cause of the injury. Stated differently, proximate cause is an event that produces an injury which is the legitimate consequence of the harm done. The connection between the injury and the neglect must be direct and natural and unbroken by any efficient intervening cause.

Analysis:

For an event to be considered as the proximate cause, it must be shown that the injury was the direct and natural consequence of the event. In the case at bar, the proximate cause of Rockwell’s injury is the act of the men of hitting his head with a brick. The failure of the manager to call the police as requested by Rockwell cannot be considered as the proximate cause. The manager’s inaction did not directly create Rockwell’s head injury.

Conclusion:

Whataburger was not the proximate cause of Rockwell’s injury. It was the act of the men for which he had an altercation with that caused his head injuries not the inaction of Whataburger’s manager.

Issue:

Whether or not the doctrine of “res ipsa loquitor” should be made to apply in the case at bar?

Rule:

The literal translation of res ipsa loquitor is “the thing speaks for itself”. Legally, this doctrine is applied whenever the facts and circumstances are so clear in showing that a particular act caused the injury. It suggests that additional particularization is no longer necessary. The term is generally applied to tort cases which usually makes further explanation ahead of  the point of legal responsibility unnecessary.

Analysis:

Res ipsa loquitor is applicable in the case at bar. There is no dispute that the perforation in Clark’s uttering wall and the damage to her intestine was caused by the negligence of Norris. The facts of the case clearly showed that liability lies squarely upon Norris’ failure to exercise due care in the conduct of the minor surgical procedure.

Conclusion:

Clark should have been allowed to use the doctrine of res ipsa loquitor to pusue her case against the negligent doctor. The injury that was caused was within the exclusive control of Norris. There is then no need to show further evidence to prove his negligence since the proof in the case is already self-evident.

Issue:

Whether or not a case for negligent infliction of emotional distress is obtainable in the case at bar?

Rule:

The tort for negligent infliction of emotional distress is premise on the idea that every person has a legal duty to observe reasonable care and foresight to prevent causing emotional distress to another person. For a case with this nature to prosper, it must be shown that: 1) the person complained (defendant) of engaged in negligent conduct; 2) the victim (plaintiff) suffered serious emotional distress; and the negligent conduct of the defendant was the cause of the serious emotional distress of the plaintiff.

Analysis:

This is a proper case of negligent infliction of emotional distress. The driver of the car was clearly negligent when he hit Burwell while the latter was changing the tire of his car. The incident cause serious emotional distress in the part of Dunphy as evidenced by her being subjected to psychiatric treatment. The serious emotional distress was caused by the incident witnessed by Dunphy.

Conclusion:

Dunphy can sue for negligent infliction of emotional distress. The facts of the case squarely fall under the element of such a tort.

Source

http://www.west.net/~smith/distress.html

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