WHEN IS A PLAINTIFF ENTITLED TO RECOVER?
A. A plaintiff who was injured as as result of some negligent conduct on the part of a defendant is entitled to recover compensation for such injury from that defendant.A plaintiff is entitled to a verdict if jury finds1. That a defendant was negligent, and2. That such negligence was a cause of injury to the plaintiff.
Q. WHAT IS NEGLIGENCE?
Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence.It is the failure to use ordinary or reasonable care.Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. The person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he or she would have foreseen or anticipated that someone might have been injured by or as a result of his or her action or inaction. If the answer to that question is “yes”, and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.
Q. HOW CAUTIOUS MUST SOMEONE BE?
A. The amount of caution required of a person in the exercise of ordinary care depends upon the conditions that are apparent or that should be apparent to a reasonably prudent person under circumstances similar to those shown by the evidence.
Q. CAN I ASSUME OTHER PEOPLE WILL BE CAREFUL AND FOLLOW THE LAW?
A. Every person who, himself, is exercising ordinary care, has a right to assume that every other person will perform his duty and obey the law, and in the absence of reasonable cause for thinking otherwise, it is not negligence for such a person to fail to anticipate an accident which can occur only as a result of a violation of law or duty by another person.
Q. WHAT ROLE DOES A LOCAL CUSTOM PLAY IN DETERMINING IF SOMEONE IS CAREFUL?
A. Evidence as to whether or not a person conformed to a custom that had grown up in a given locality or business is relevant and ought to be considered, but is not necessarily controlling on the question whether or not he exercised ordinary care.
Q. IS A CHILD HELD TO THE SAME STANDARD AS AN ADULT?
A. A minor is not held to the same standard of conduct as an adult. He/she is only required to exercise the degree of care which ordinarily is exercised by minors of like maturity, intelligence and capacity under similar circumstances. It is for the jury to determine whether the conduct of plaintiff was such as might reasonably have been expected of a minor of her maturity, intelligence and capacity, acting under similar circumstances.
Q. WHAT HAPPENS WHEN A PERSON MUST WORK IN A DANGEROUS SITUATION?
A. When a person’s lawful employment requires that he work in a dangerous location or a place that involves unusual possibilities of injury, or requires that in the line of his duty he/she take risks which ordinarily a reasonably prudent person would avoid, the necessities of such a situation, insofar as they limit the caution that he/she can take for his/her own safety, lessen the amount of caution required of him by law in the exercise of ordinary care.
Q. IF AN INJURED PERSON IS AT FAULT, CAN HE/SHE STILL COLLECT?
A. Contributory negligence is negligence on the part of a plaintiff which, combining with the negligence of a defendant, contributes as a cause in bringing about the injury.Contributory negligence, if any, on the part of the plaintiff does not bar a recovery by the plaintiff against the defendant but the total amount of damages to which the plaintiff would otherwise be entitled shall be reduced in proportion to the amount of negligence attributable to the plaintiff.
Q. WHAT IS A LEGAL CAUSE?
A. The law defines cause in its own particular way. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm.
Q. WHAT IF THERE IS MORE THAN ONE CAUSE OF AN INJURY?
A. There may be more than one cause of an injury. When the negligent conduct of two or more persons or negligent acts and a defective produce contributes concurrently as causes of an injury, the conduct of each is a cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. It is not a defense that the wrongful act of a person not joined as a party was also a cause of the injury.
any jurisdiction one must prove that the product is defective. There are three types of product defects that incur liability in manufacturers and suppliers: design defects, manufacturing defects, and defects in marketing. Design defects are inherent; they exist before the product is manufactured. While the item might serve its purpose well, it can be unreasonably dangerous to use due to a design flaw. On the other hand, manufacturing defects occur during the construction or production of the item. Only a few out of many products of the same type are flawed in this case. Defects in marketing deal with improper instructions and failures to warn consumers of latent dangers in the product.
Products Liability is generally considered a strict liability offense. Strict liability wrongs do not depend on the degree of carefulness by the defendant. Translated to products liability terms, a defendant is liable when it is shown that the product is defective. It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it.
A negligence theory requires the plaintiff to prove four elements. First it must be shown that the defendant owed a duty to the consumer. Manufacturers do in fact, owe a duty to the users of its products and to bystanders likely to be injured. The manufacturer also has a duty in making its product, to guard against injuries likely to result from reasonably foreseeable misuse of the product. For example, a power saw that explodes when used on unrecommended hard wood, might well be defective. The plaintiff must also show that the manufacturer breached its duty, (by applying the above design defect, manufacturing defect or failure to warn theories). In showing breach, the reasonable manufacturer standard applies, i.e., would the reasonable manufacturer, with knowledge or constructive knowledge of the product’s defect, have produced the product. If the answer is “no”, then the manufacturer has breached its duty. Of course, the plaintiff need also prove he or she was injured and that the defendant’s breach caused the injury.
Strict liability is different from a negligence theory in that the injured plaintiff need not show knowledge or fault on the manufacturer’s part. The plaintiff must show only that the product was sold or distributed by a defendant, and that the product was unreasonably dangerous at the time it left the defendant’s hands in order to prove liability on the part of such defendant. The behavior or knowledge (or lack of knowledge) of a products liability defendant regarding the dangerous nature of a product is not an issue for consideration under a strict liability theory. Strict liability concerns only the condition of the product itself. In contrast, a negligence theory concerns not only the product, but also the manufacturer’s knowledge and conduct.
“Strict liability”, however, does not mean “absolute liability”. Simply because a person is injured, he or she cannot assert strict liability and automatically recover. Instead, the injured consumer in asserting strict liability, still must prove his or her right to compensation by showing that the unreasonable dangerous condition of the product was what actually caused the injuries sustained.
WHEN IS A PLAINTIFF ENTITLED TO RECOVER?