Definition of negligence
Negligence refers to the situation whereby a person fails to behave prudently towards another through actions or omissions that may result to inflicting unreasonable harm to that other person (Cornell University Law School, 2010). The essential elements of negligence include; 1) duty- this is the obligation that a person has with respect to another person, 2) breach- it is the conduct that results in failure to fulfill the duty, 3) cause in fact- this refers to ascertaining whether the actions of the defendant are actually responsible for the damage to the plaintiff, 4) proximate cause- this is the scope to which the defendant is liable for the harm caused. A close connection between the defendant’s wrong doing and the harm inflicted is established to ascertain whether the harm could have been foreseen by the defendant or not, 5) damage- this refers to the actual harm resulting from the defendant’s failure to act with care as duty requires (Owen 2007). According to the above definition of negligence and its elements, Michael is Guilty of negligence because though he knew the risk his actions could result to, he still went ahead to act carelessly hence harming Ed.
Contributory negligence is a situation whereby it is established that the harm resulting from negligence on the part of the defendant is not entirely the fault of the defendant but also due to the negligence of the plaintiff to whom the harm has been inflicted. I agree with Michael’s attorney that if contributory negligence is established, the outcome of the case would change greatly. If this is the case, no matter how unfair the situation would be, Ed would not be in a position to recover from Michael as he would also be found to be at fault (West’s Encyclopedia of American Law, 2008).
Comparative negligence refers to whereby the responsibility for the damages is allocated to all the parties responsible relative to the degree of contribution. If Michael establishes comparative negligence on the part of the company, the outcome could change as Michael would share the responsibility for the damages with the company. The liability would be allocated based on the degree of negligence for the two parties, that is, Michael and the company (West’s Encyclopedia of American Law, 2008).
According to the theory of negligent training/supervision under derivative negligence of New Mexico, it is provided that the employer is responsible for the actions of his/her employees if 1) the employer did not properly train/supervise the employee, and 2) this negligent conduct of the employer was closely connected to the damage inflicted on the plaintiff (Holm et al., 2005). In this case, I believe that the company is liable for damages because to begin with, Michael was an employee for the company. It is expected that during the induction training of the employees, they should be informed on the risks involved in all areas of involvement. It is also expected that there should be adequate supervision especially in risky operations such as fork lift operations. I believe that if supervision was adequate, such an accident would not have occurred as Michael would not have operated the forklift in the first place as he was not qualified to do that nor was that part of his job description. In addition, the company should ensure the safety of all its employees and therefore the company was responsible for the damage because Ed suffered the accident in the course of duty.
References
Cornell University Law School. (2010). Negligence: Retrieved from. http://www.law.cornell.edu/wex/negligence
Holm, T. C., et al. (2005). Employer Liability for Employee Actions: Derivative Negligence Claims in New Mexico: Retrieved from. http://www.modrall.com/files/1282_employer_liability_for_employee_actions.pdf
Owen, D. G. (2007). HOFSTRA Law Review: The Five Elements of Negligence: Retrieved from. http://law.hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_v35n04_i01.pdf
West’s Encyclopedia of American Law. (2008). Litigation Law: Negligence: Retrieved from. http://legal-dictionary.thefreedictionary.com/negligence
