Tort Law

Tort Law

The first negligence liability lies in the installation of the rim and backboard by ACE sports. Although Bobby has no relationship to ACE, the company has the obligation of making sure that whatever equipments it sells are in good condition. The company has the responsibility of checking their equipment before installation. This satisfies the first element of a tort of negligence that any foreseeable harm must be compensated (White, 2003). ACE breached its duty to customers and other users like Bobby by installing a rim that had metal edges, which are a threat to the players of basketball. The third element is direct cause and this is shown by the fact that, the metal edges caused the cuts, which led to the amputation of his arms. Bobby can prove that ACE could have foreseen the danger caused by metal pieces sticking out of the rim. As for the damages, Bobby can show the amputated arms as evidence for physical injury.

There is also potential liability on the side of Nurse Williams who attended to Bobby at City General Hospital. The nurse had a responsibility of giving emergency care to Bobby under the Emergency Medical Treatment and Active Labor Act (EMTALA). This is an act that entitles all people in the United States to emergency treatment without making considerations to the person’s ability to pay or citizenship (Harpwood, 2005). The nurse at City General hospital did not do much to help Bobby. She just covered his hands with towels and left him to wait for his parents consent and insurance. Under this act, a hospital can call to enquire for insurance details but this should not delay the medical assistance. The nurse in this case, neglected the patient and went to make the call. The amount of time that was wasted between waiting for his parent’s consent and the transfer caused a delay, which led to the amputation of Bobby’s arms. The damages caused in this case are that Booby had to face surgery and amputation of his wrists.

The hospital is legally liable for negligently violating the EMTALA act and increasing the risk of Bobby’s wounds getting worse. The hospital has the duty of ensuring that its entire personnel act in accordance to the rules and regulations set by the government. In addition, the transfer was an illegal act from the hospital since a transfer should only take place if the patient consents and the risk level has already been lowered. This makes the hospital liable to pay a civil money penalty to Bobby if he decides to sue. It is also worth noting that a hospital that is found guilty of violating the EMTALA statute may have its license revoked making it impossible for the hospital to provide medical care (White, 2003).

Dr. Andrews, the surgeon is also liable to negligence and malpractice. A medical practitioner has the responsibility of making the correct diagnosis before giving any treatment including surgery. The doctor should also conduct an applicable screening process before surgery. Direct cause, which is an element in a tort of negligence, can be seen here through the surgeon’s actions. The amputation of Bobby’s left wrist was an avoidable error and it has caused damages in terms of physical injuries. The surgeon has a duty of taking care of his patients in every way possible. In addition, he has to make sure that the diagnosis he is making is correct and will not result in further injury for the patient. Bobby can sue the surgeon for professional negligence and malpractice (Harpwood, 2005).

Bobby could also be found to have acted in a negligent manner because it was his responsibility to check the equipment before using it. This kind of negligence may result in a reduction of the fee damages awarded to him from the possible liabilities. However, Bobby’s degree of negligence is very low as compared to the other people and factors that led to amputation of his wrists. Bobby did not foresee the danger that could be caused by the rim that had been installed for the school’s use; therefore, the other people concerned in this case may have a hard time to prove that Bobby acted in a negligent way.

 

Comparative Negligence

            Comparative negligence is a legal system that allows the injured party to recover some of the damages although he was partly to blame the injury. This system is applied in some states while others do not. In all cases involving tort of negligence, the jury must find supporting evidence to calculate the plaintiff’s negligence in causing the injury (Schwartz, 1974). This is then compared to the negligence of all other people who caused the injury. When this degree has been ascertained, the court will then decide how comparative negligence affects the case.

In the analysis of liability, comparative may have a positive or negative effect on the judgment of the case. If the plaintiff contributed largely to the injuries being discussed, the amount of money paid as damages may be reduced or blocked completely by the court. This means that the court has the responsibility of collecting accurate data concerning the degree of comparative negligence on the plaintiff’s side. On the other hand, the degree of comparative negligence may be very low as compared to other factors that caused the injury. In such a case, the jury or the judge decides the amount of liability to be awarded to each party.

There are three different types of comparative negligence, which are followed by different states. First, there is pure comparative negligence where the injured person can recover a huge percentage of damages regardless of his degree of negligence (Schwartz, 1974). The second type is modified comparative negligence whereby, the jury gathers information regarding the degree of negligence for each party and then divides the amount accordingly. The third type is modified comparative fault or the 51% rule. In this system, the injured party can only recover his damages if his comparative negligence is not above 51%.

References:

Harpwood, V. (2005). Modern Tort Law. San Marino, CA: Routledge Cavendish.

Schwartz, V. E. (1974). Comparative Negligence. Indianapolis: A. Smith Co.

White, G. E. (2003). Tort Law in America: An Intellectual History. Oxford, UK: Oxford Univ. Press.