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Lesson Four: Employer Negligence - Part I In the first three lessons of this course we exhaustively reviewed the dynamics of discrimination laws in the United States, their proscriptions and their exceptions. Provided that a job applicant makes it beyond these hurdles, and the employer in question is preparing to offer him or her a job, there are several things that HR professionals should know in order to avoid liability in hiring. Employer Negligence Most liability that an employer might bear in the employment context is in the form of negligence, either directly or vicariously. There are other potential grounds for liability in the employment environment, including contract-related matters. However, as the vast majority of employees are not hired subject to a contract, the following discussion will focus mainly on concerns related to employment in the “at will” context. 1 In order to participate in an informed discussion about employment negligence, one must first understand the definition of negligence. Negligence in the legal arena concerns unintentional harm that results from a failure to use the care that would be expected of a reasonable person under the same circumstances (Negligence, n.d.). Negligence is usually a civil tort (wrong), but may rise to the level of criminal culpability if the conduct of the tortfeasor is sufficiently reckless or severe. Generally, negligence has four key elements: Duty: In order for someone to be guilty of negligence, he or she must have first had a duty of care. An example will serve to illustrate. Suppose a passerby, Steve, comes across a person in peril, Bob. Let us say that Bob is suffering a heart attack and is in need of immediate medical attention. Now, as heartless as it might be for Steve to decline to help Bob (even by simply calling 911), generally no such duty exists for Steve, and thus there can be no negligence. 2 In the employment context, employers almost always have a duty to maintain a safe and secure environment for their employees and customers. Breach: In addition to the existence of a duty, the accused must have also breached his or her duty. Let us change the facts of the above example and suppose that Steve is a server in a restaurant and Bob is his customer. Under these circumstances, Steve probably does have a duty to help Bob, but if he fulfills that duty, say, by calling 911, then there obviously can be no negligence. This element of breach is the focus of many, if not most, negligence disputes. Damage(s): In order for someone to be found guilty of negligence, the breach of whatever duty is in question must have resulted in damage of some kind. If Steve fails to help Bob, but Bob recovers from his heart attack on his own with no harm of any kind, he cannot successfully sue Steve for negligence. Harm must have been suffered. Note that damage need not be physical in nature, though. Bodily injury is of c ...
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© 2014 Jones and Bartlett Publishers Chapter 4 Tort Law © 2014 Jones and Bartlett Publishers LEARNING OBJECTIVESDescribe what a tort is and the purpose of tort law. Identify, understand, and describe the elements of negligence. Identify and describe intentional torts.Explain the theories a plaintiff could use in pursuing a products liability case and the defenses a manufacturer might use to defend itself. © 2014 Jones and Bartlett Publishers TortA civil wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy in form of an action for damages. © 2014 Jones and Bartlett Publishers Objectives of Tort LawPreservation of peace between individuals.Find fault for wrongdoing.Deterrence by discouraging the wrongdoer from committing future tortious actsCompensation to indemnify injured person/s. © 2014 Jones and Bartlett Publishers Categories of Tort LawNegligenceIntentionalStrict liability regardless of fault e.g., products liability © 2014 Jones and Bartlett Publishers NegligenceCommission or omission of an act that a reasonably prudent person would or would not do under given circumstances. © 2014 Jones and Bartlett Publishers Commission of an ActAdministering the wrong medicationAdministering the wrong dosage of a medicationAdministering medication to the wrong patientPerforming a surgical procedure without patient consentPerforming a surgical procedure on the wrong patientPerforming the wrong surgical procedure Omission of an ActFailing to conduct a thorough history & physical examinationFailing to assess & reassess a patient's nutritional needsFailing to administer medicationsFailing to order diagnostic testsFailing to follow up on abnormal test results © 2014 Jones and Bartlett Publishers MalpracticeNegligence of a professional person surgeon who conducts a surgical procedure on wrong body part © 2014 Jones and Bartlett Publishers Criminal NegligenceReckless disregard for safety of another.Willful indifference to injury that could follow an act. © 2014 Jones and Bartlett Publishers Forms of NegligenceMalfeasanceExecution of an unlawful or improper act, i.e., performing a partial birth abortion when prohibited by lawMisfeasanceImproper performance of an act, i.e., wrong sided surgery.NonfeasanceFailure to act when there is a duty to act, i.e., failing to prescribe medications that should have been under the circumstances Degrees of NegligenceSlightMinor deviation of what is expected under the circumstances. Ordinary NegligenceFailure to do what a reasonably prudent person would or would not do.Gross NegligenceIntention or wanton “omission of care” that would be proper to provide or the “commission of an act” that would be improper to perform. © 2014 Jones and Bartlett Publishers Elements of NegligenceDuty to Use Due CareStandard of careBreach of DutyInjury/Actual DamagesProximate Cause/CausationForeseeability © 2014 Jones and Bartlett Publishers .
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© 2014 Jones and Bartlett Publishers Chapter 4 Tort Law © 2014 Jones and Bartlett Publishers LEARNING OBJECTIVESDescribe what a tort is and the purpose of tort law. Identify, understand, and describe the elements of negligence. Identify and describe intentional torts.Explain the theories a plaintiff could use in pursuing a products liability case and the defenses a manufacturer might use to defend itself. © 2014 Jones and Bartlett Publishers TortA civil wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy in form of an action for damages. © 2014 Jones and Bartlett Publishers Objectives of Tort LawPreservation of peace between individuals.Find fault for wrongdoing.Deterrence by discouraging the wrongdoer from committing future tortious actsCompensation to indemnify injured person/s. © 2014 Jones and Bartlett Publishers Categories of Tort LawNegligenceIntentionalStrict liability regardless of fault e.g., products liability © 2014 Jones and Bartlett Publishers NegligenceCommission or omission of an act that a reasonably prudent person would or would not do under given circumstances. © 2014 Jones and Bartlett Publishers Commission of an ActAdministering the wrong medicationAdministering the wrong dosage of a medicationAdministering medication to the wrong patientPerforming a surgical procedure without patient consentPerforming a surgical procedure on the wrong patientPerforming the wrong surgical procedure Omission of an ActFailing to conduct a thorough history & physical examinationFailing to assess & reassess a patient's nutritional needsFailing to administer medicationsFailing to order diagnostic testsFailing to follow up on abnormal test results © 2014 Jones and Bartlett Publishers MalpracticeNegligence of a professional person surgeon who conducts a surgical procedure on wrong body part © 2014 Jones and Bartlett Publishers Criminal NegligenceReckless disregard for safety of another.Willful indifference to injury that could follow an act. © 2014 Jones and Bartlett Publishers Forms of NegligenceMalfeasanceExecution of an unlawful or improper act, i.e., performing a partial birth abortion when prohibited by lawMisfeasanceImproper performance of an act, i.e., wrong sided surgery.NonfeasanceFailure to act when there is a duty to act, i.e., failing to prescribe medications that should have been under the circumstances Degrees of NegligenceSlightMinor deviation of what is expected under the circumstances. Ordinary NegligenceFailure to do what a reasonably prudent person would or would not do.Gross NegligenceIntention or wanton “omission of care” that would be proper to provide or the “commission of an act” that would be improper to perform. © 2014 Jones and Bartlett Publishers Elements of NegligenceDuty to Use Due CareStandard of careBreach of DutyInjury/Actual DamagesProximate Cause/CausationForeseeability © 2014 Jones and Bartlett Publishers ...
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