Who is liable?
This situation is full of negligence .So let’s start from the very beginning.
“Bobby and Rachel were playing basketball on the school playground with a brand new backboard and rim built and installed by ACE Sports”. So this new equipment was installed by ACE Sports and this is their fault that Bobby was injured. If an accident is caused by a defective product, the manufacturer and seller of the product are both liable even if the injured person doesn't know which one was careless in creating or allowing the defect, or exactly how the defect happened.
Also they were playing at the school playground, so the school authorities should stick to the security rules, and check school equipments. As we can see Rachel was also a “good” example of negligence, she wasn’t aware of the first aid rules and this is the fault of the school. She even didn’t have any idea to take Bobby to the school First Aid Box .As it known The Health and Safety (First Aid) Regulations, 1981, placed a general duty on the University to make adequate First Aid provision for all employees should they be injured or become ill at work.
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Each School and/or building is therefore required to provide: a number of properly stocked First Aid Boxes appropriate to the risks of accidents or injuries that could arise from school activities and to place these boxes in the care of an Appointed Person or qualified First Aider; access to the services of one or more qualified First Aiders as appropriate to the work of the School (Area); notices giving the names and locations of the qualified First Aiders, Appointed Persons and the locations of the First Aid Boxes.
The increased risk of injuries in recent years has made us all the more sensitive of the need for clear communication with youth and parents or legal guardians, for appropriate supervision for all activities, and proper maintenance of our facilities to reduce the possibility of accidental injury. The term "risk management" is often used to describe efforts to minimize possible injuries to those who are in care.
A teacher’s duty of care also relates to the quality of instruction or training provided to the students. Regulation 298 requires teachers to "be responsible for effective instruction, training and evaluation of the progress of pupils in the subjects assigned to the teacher."
Ineffective instruction and training can cause serious harm to students, especially to those participating in activities that have the potential to place them at risk. When planning courses and activities for students, educators should consider what needs to be done to reduce risks of liability. Teachers must make every effort to address such crucial issues as the degree of supervision required, the instruction and training needed to permit the students to function properly, and the condition of the equipment to be used. So Rachel had no experience at all in this aria.
The next element of negligence: “When they arrived at City General hospital, Bobby was immediately seen by a nurse who gave a large towel to Bobby. Nurse Williams told Bobby to put pressure on the cut while she tried to get a hold of his parents.” As we can see even the nurse didn’t provide right first aid. Instead of towel she should give special bandage: “Individually Wrapped Triangular Bandages (preferably sterile): can be used as a pad to stop bleeding, as a sterile covering for large injuries such as burns, as a bandage, or to make a sling.” So we can judge her for the negligence because a person can be considered negligent whenever he or she had a duty to act carefully and failed to do so. She failed not only provide first aid but also she made him to wait, instead of giving him certain treatment.
Unfortunately this hospital shows us that a great part of its staff failed in their duty: Dr. Andrews, a surgeon who was going to have a lunch and sent him to make an x-rate, then ten minutes later, Nurse Williams who told Bobby to go to the x-ray department, Johnny, the x-ray technologist who took some x-rays and sent Bobby back.
So let’s turn to the STATE (TORT) LIABILITY LAW.
There are three types of torts under state law, each with different levels of proof and focusing upon different elements of the injury or damage. Evidence rules, precedent, and judicial discretion play a role in determining what type of tort law will be applied.
NEGLIGENCE -- In this case, intent or mental state do not matter. What matters is whether some inadvertent act or failure to act created an unreasonable risk to another member of society. (Examples: speeding resulting in traffic accident; not responding to 911 call) Most states have three levels of negligence: (1) slight or mere (absence of foresight); (2) gross (reckless disregard) this is our case and (3) criminal. To be prosecuted under tort law for negligence usually requires at least level 2 since to be prosecuted for mere negligence requires considering foresee ability which would support charging the person with an intentional tort or not.
Examples of gross negligence or accumulations of mere negligence constitute deliberate indifference. This standard is usually satisfied by looking at whether or not the agency administration engaged in supervisory negligence. Virtually every decision a police administrator makes subjects them to possible liability. There are examples of supervisory negligence and our case relates to them:
Failure to treat - also a liability of officers and jail manager; not providing first aid, ambulance service, or counselling (given the foresee ability of suicide); Negligent entrustment ;Negligent assignment ;Failure to direct ;Failure to discipline; Failure to investigate ;Failure to protect ;Negligent classification etc.
Negligence, according to Sr. Mary Angela Shaughnessy, S.C.N., J.D., is the most common of all lawsuits filed against educators. Negligence is an unintentional act or omission, which results in injury. Due to the fact that negligence is unintentional, a person charged with negligence is generally not going to face criminal charges but monetary charges (Shaughnessy, 1996, pp.8-9).
So I also can state that we deal with not only simple, everyday negligence but with Legal negligence. Legal negligence must include four elements. If any of these elements is missing, legal negligence cannot be found. The four elements of negligence are:
Duty • Violation of duty • Proximate cause • Injury
Our case has all this elements.
The person charged with negligence must have had a responsibility or a duty in the situation. Injuries that occur at a place or time where the person does not have responsibility does not constitute liability. Violation of duty means that the person charged with negligence was not engaged in the responsibility or duty. Accidents can happen even with proper supervision but there is no negligence if there is no violation of duty. And as we can see the violation of duty had a great deal in this case.
Now I can state that I have entirely evaluated the potential liability (tort or otherwise) of the various parties in this case.
SOURCES
1. Police Liability Concerning Human Rights
2. Kappeler, V. (1993). Critical Issues in Police Civil Liability. Prospect Heights, IL: Waveland Press.
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