Actual cause v. Proximate Cause
Actual cause is when the actions and conduct of the defendant are the direct cause of the injuries suffered by the plaintiff (Cheesman 95). Actual cause is, usually, determined by carrying out an analysis aimed at establishing whether the plaintiff would be okay if it were not for the conduct of the defendant (Cheesman 95). On the other hand, proximate cause relates to the foreseeability of the occurrence of injury (Cheesman 95). Precisely, for proximate cause to be established, the plaintiff’s injuries in relation to the defendant’s actions must be foreseeable.
The law recognizes the doctrine of proximate cause with the view of reducing the level of negligence. In particular, it aims at ensuring that those who owe others the duty of care do what is expected of them without compromise (Kionka 46). The enforcement of this law reduces cases of foreseeable injuries from people who have a duty of care to others.
Disparagement
This is the act of slandering another business or person to hurt and harm them (Hall and Clark 59). Most people or businesses resort to it as a way of gaining a business millage over their competitors (Cheesman 89).
Elements of disparagement:
- There must be an untrue statement
- The statement must be published for third parties
- The originator of the statement is aware that the statement is not true
- The creator has a malicious intent
In the case of Lucky Cheng’s v. Zagat, the statements published by Zagat are not factual since there is no sufficient evidence to prove their legitimacy. The customers and people it quotes are anonymous and, therefore, it is not clear whether any interviews were done to help collect information about Lucky Cheng’s Restaurant (Cheesman 104).
Zagat is liable for disparagement since none of the statements appears to be true. They all seem to have been founded on rumors. Despite not giving enough evidence to support their allegations, they have published them in a publication that is widely read (Cheesman 104). Worse still, it is clear from the tone used in their publication that they have a malicious intent.
Negligence
Negligence is not doing something that reasonable human beings should do (Emanuel 27). It can also be defined as doing what a reasonable human being cannot do. The elements of negligence are:
- The defendant owes duty of care to the plaintiff
- The duty of care is breached by the defendant
- The plaintiff suffers injury
- The negligent act of the defendant is the actual cause of the injury
- The negligent act is also the proximate cause of the injury
In the case of Wilhelm v Flores, Wilhem acts negligently by not warning Flores about the danger of working with bees (Cheesman 104). He had a duty of care but breached it by not informing him to have his protective suit intact (Linden, Feldthusen and Brecher 72). A reasonable beehive vendor is expected to be very precautious.
Ethics
Walmart did not act responsibly. They should, at least, have given Goodman a chance to give her part of the story as opposed to shoving her off in front of her children. In the same vein, bringing charges against her before allowing her to defend herself or inquire from the employee that had interacted with her was very irresponsible.
The merchant protection statute does not protect Walmart in this situation as there are no reasonable grounds for suspicion (Davies and Malkin 67). Besides, they did not carry out their investigations in a reasonable manner. The merchant protection statute requires a merchant to only detain a suspected shoplifter when there is a reasonable ground for suspicion and only after carrying out investigations in a reasonable manner (Cheesman 95).
Works Cited
Cheesman, Henry. Contemporary Business Law, New York: Prentice Hall, 2014. Print.
Davies, Martin, and Ian Malkin. Torts. Chatswood, N.S.W.: LexisNexis Butterworths, 2008. Print.
Emanuel, Steven. Torts. New York: Wolters Kluwer Law & Business, 2011. Print.
Hall, Kermit L, and David Scott Clark. The Oxford Companion to American Law. New York: Oxford University Press, 2002. Print.
Kionka, Edward J. Torts. St. Paul, MN: Thomson/West, 2006. Print.
Linden, Allen M, Bruce Feldthusen, and Jay Brecher. Negligence. Markham, Ont.: LexisNexis, 2007. Print.