Introduction
Negligence is the largest of the three major categories of torts. It covers injuries or other losses caused by unreasonableness. The other two categories are intentional and strict liability torts (Statsky, 2011). The broad meaning of negligence is the failure to use reasonable care that an ordinary prudent person would have used in a similar situation, resulting in harm or other loss.
The short definition of the same is injury or other loss caused by the failure to use reasonable care. Okrent (2009) defines negligence as tortfeasor’s failure to exercise reasonable care, thus causing a foreseeable injury to another person or that person’s property.
Negligence liability exists when someone is at fault. The injury he or she causes must be due to an error or defect in judgment or conduct to which blame and culpability are attached.
This paper provides an analysis of a news article written within the last six months that illustrates a case of negligence. The article to be discussed is one released on Newser, an online news site developed in the United States of America.
Description of the Article
The said article appeared in the Newser issue of August 14th, 2012. The article is about a Thai Senator who accidentally shot his secretary at a dinner. According to a report by the police, Senator Boonsong Kowawisarat was happily enjoying a meal with members of his family when he accidentally shot his ex-wife who allegedly worked as his secretary (Quinn, 2012). Although it might appear that the shot went off accidentally, it is not obvious why he chose to go for dinner with his submachine gun loaded.
In a lawsuit, close relatives of the Senator’s ex-wife were the plaintiff while Senator Boonsong Kowawisarat was the defendant.
Elements of Negligence
According to Iyer (2001), the elements of negligence include duty, breach of duty, proximate cause, or casual connection, and damages. Usually, the plaintiff has the burden of proving a number of things. First, he or she must be able to show that the defendant owed a duty to him or her. Second, the plaintiff must prove that the defendant breached the duty. Thirdly, the plaintiff must be able to prove that there is a proximate cause or casual connection between the breach of duty and the injury suffered (Okrent, 2009). Finally, there must be proof of damage or actual harm caused to the plaintiff.
Each of these elements is required for negligence to exist. If the answer to any of the elements is “No”, negligence does not exist. For example, the first is whether the tortfeasor owes a duty of reasonable care to the injured party. If not, then the analysis stops with the conclusion that no negligence has occurred. If yes, then one must ask whether the tortfeasor breached the duty of reasonable care. If not, the injury is finished, and once again, the analyst concludes that there was no negligence. If yes, then one continues querying through causation, and damages. Each element must be satisfied for negligence to exist.
Contributory Negligence as a Form of Negligence Defense
Contributory negligence is a form of negligence defense which the defendant could use to defeat the negligence action. Although “volenti non fit injury” or “to a willing person, injury is not done” is another option that may be used by the defendant, the contributory negligence is the best way to go. Under “volenti non fit injuria”, the Senator would escape liability for the consequences of negligence if the claimant expressly or impliedly agrees to accept the legal risk associated with the negligence.
Generally, contributory negligence is considered a partial defense to the majority of actions in tort, including negligence (Okrent, 2009). Where the court finds the fault on the part of both the claimant and the defendant, then the damages will be reduced to the extent that the court thinks just and equitable.
According the Law Reform Act of 1945, if any person suffers damage as the result partly of his or her own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the persons suffering the damage, but the damages recoverable in respect shall be reduced to such extent as the court thinks just and equitable considering the claimant’s share in the responsibility for the damage.
This is sometimes referred to as the stalemate rule. If both parties were to blame, the law did nothing to compensate the loss. The statutory provisions mark a considerable improvement over the previous common law in terms of not only fairness but also simplicity since the stalemate rule was subject to considerable variation over the years.
For example, the courts in England have devised a last opportunity rule whereby a plaintiff whose fault had played some part in creating a hazard could still recover damages if the defendant had the last chance to avoid the harm. This rule and many intricate variations around it need not detain us because they play no part in the current law.
However, since fairness and justice are the guiding principles for reducing damages, it is important to note that fairness in apportionment, taking into account relative fault and responsibility for damage, might not produce fair outcomes overall.
This is a particular issue in actions for personal injury, and above all, in cases where there is a compulsory scheme of the third party insurance. The portion of damages withheld because of contributory negligence frequently represents loss that the claimant must bear alone.
For example, a cyclist who gets too close to a line of parked cars may have damages reduced if a car driver carelessly opens a door into his or her path. Similarly, a pedestrian who does not take sufficient care in crossing the road may have damages reduced even if the car that hits him or her was moving too fast.
As a senior government official, Senator Boonsong Kowawisarat had a right to carry his submachine gun along with him wherever he went. There are not rules that restrict senior officials of his caliber to be not armed during meal, be it with family members or otherwise.
It is, therefore, unfair for any person to claim that Senator Boonsong Kowawisarat intentionally shot dead his secretary. Despite the fact that the Senator was no longer living with his ex-wife, there are no indications of any conflicts happened between them. A case of Senator Boonsong Kowawisarat is something that could happen to any one else in his position.
Furthermore, the secretary is also partly to blame for what happened. Unless she had sat directly facing the Senator, she probably would not have been shot. She could have been sitting elsewhere and the tragedy would not have occurred. I am, therefore, convinced that the victim should bear part of the blame and hence, contributory negligence can be used by the Senator in defense.
The apportionment of responsibility between the parties, however, ought to be the most difficult aspect of the contributory negligence. Ideally, this apportionment should reflect responsibility for the damage suffered. Responsibility in this context is a question partly of causal influence and partly of degree of fault. Practically, courts arrive at the reduction in a fairly rough manner, without engaging in very detailed enquiries about causal impact or relative fault.
Argument for or Against Proceeding with a Lawsuit
In my opinion, the plaintiff does not need to proceed to press charges. As it has been explained above, the plaintiff bears equal responsibility. Pressing any charges against the Senator would thus be a waste of time and money. If the court correctly applied the Law Reform Act of 1945, then the plaintiff would be on the losing end.
From the above description of the law, it appears that the secretary had the option of sitting elsewhere, not directly facing the Senator. It was her choice of a place to sit that eventually led to her being shot dead. Furthermore, the Senator had nothing to do with her decision to sit where she did. The right thing to do, therefore, would be to desist from proceeding with a lawsuit against the Senator.
References
Iyer, P. W. (2001). Nursing Malpractice, 2nd ed.. Tucson, AZ: Lawyers & Judges Publishing Company.
Okrent, C. J. (2009). Torts and Personal Injury Law. Clifton Park: Cengage Learning.
Quinn, R. (2012, August 14). Thai Senator ‘Accidentally’ Shoots Secretary at Dinner: His Uzi Goes off in Restaurant. Newser. Retrieved from https://www.newser.com/story/152036/thai-senator-accidentally-shoots-secretary-at-dinner.html
Statsky, W. P. (2011). Essentials of Torts. Clifton Park: Cengage Learning.