Negligence has been defined by Restatement (Second) of Torts as conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. However, before examining the elements that constitute the tort of negligence, a personal experience I once encountered will best posit the situation.
After a long day in the office, I rushed to my nearby favorite restaurant that I usually frequent and ordered a cold bottle of soda. Owing to the exhaustion and thirst I was experiencing, I gobbled it up nearly emptying the contents of the bottle. However, as I placed the bottle on the table, I noticed a dark object in the bottle. I then called the waiter in exasperation and we emptied the dark object which turned out to be a decomposed cockroach. I could not recollect the events that followed as I was then rushed to a nearby hospital after collapsing due to shock. I was bedridden for three days and later discharged. Though I did not pursue a civil suit against the company, it is wise to consider whether the same would qualify to be a tort of negligence so as to found a civil action.
Negligence refers to conduct that falls short of the standard set by law to prevent others from unreasonable risk of harm. It would appear that the manufacturing company conduct of packaging a contaminated product that it knew would be for human consumption fell short of that established by law of preventing unreasonable risk of harm to another.
Being the case that this act amounts to a negligent one, it becomes imperative to examine the elements of negligence. The tort of negligence consists of a number of elements namely; the defendant must owe a duty of care to the plaintiff, that there must be a breach of such duty, that there must be an actual causal connection between the conduct of the defendant and the injury occasioned, that there must have been proximate cause-the harm must have been foreseeable and that damage must result from the conduct of the defendant.
Applying the law to the particular facts in this situation, the first question is whether the manufacturing company, in this case the defendant, owed any duty to the plaintiff (myself in this case). Being a consumer of its products, and the manufacturing company having many people as its customers, it owed a duty to all its customers who consume its products that its products are safe for such use. It would be a travesty of justice and a countenance of unethical practices by the law, if businesses would be allowed to make profits from the public whilst offering defective products and yet escape liability. Has there been a breach of such duty? Certainly.
Was the shock that caused my confinement in a hospital bed connected to the defendant’s conduct of breaching its duty? This issue would probably be in contention and would possibly necessitate a medical examination to establish the cause of the collapse.
This harm must have been foreseeable to the defendant as defective products clearly have the potential to do harm. And lastly, the shock and the collapse suffered together with the hospital bill incurred fulfill the last element of damage suffered. Consequently, this is a classic case of negligence that has chances of founding a tortuous claim.
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Miller, R. L., & Jentz, G. A. (2009). Fundamentals of Business Law: Excerpted Cases. New York: Cengage Learning.