I humbly presumed that it is widely understood that the lack of diligence is the essence of what is called “Negligence”, the term then signifies as the absence or the lacking of caution which an ordinary man of common sense should observe.
Thus, I defined “Negligence” as a failure of what a prudent man anticipates; a failure of apprehension on the reasonable consequence of an act; the failure in the anticipation of a natural result of an act or omission.
In negligence cases, there are so many corners of events from which an incident might be interpreted in accordance with the circumstances of time, place and some other situations. Almost all of the principles involved date back to the time of ancient civilizations, most of them were from Rome, that is still useful even to this day of our time. Only that not all of these doctrines were accessible to our direct understanding – meaning, these doctrines in generality are not easy to understand. Hence, to explain them in the simpliest term is a necessity in this attempt.
Before anything else, we will try to discover in the first place the two types of negligence; it is the negligence of doing [it means, to constitute a negligence, the actor must have done a negligent act] and the negligence of non-doing [it means, to constitute a negligence, the actor failed to observe some standards dictated by human reasoning. It is also called negligence of omission].
THE LAST CLEAR CHANCE DOCTRINE
The doctrine of last clear chance refers to the situation whereby a party who had the last opportunity to avoid or to escape the danger is considered to be negligent when he failed to evade from the impending harm.
Illustration: Mario Gitubol was properly driving his car in the proper lane; when he observed that a car in opposite direction was running in the same lane of the road, Mario Gitubol did not bother to take the other lane on the basis of his belief that he will be favored in the courts of law in case of collision case because he is driving his car in the proper lane. The two cars collided and the last clear chance is in him who had the opportunity to avoid the incident.
Comment: Mario Gitubol shall be considered negligent because the accident would not have occured had he avoided the car that was running in his lane. He had the last chance to avoid the mishap; the fact that he was running his vehicle in a right lane does not totally cleared him from being negligent. The doctrine of last clear chance appeared to be unfair for those who were prudent; In my opinion, the person who detects danger and failed to avoid it is not and never to be considered as prudent. In fact, it is the most reasonable doctrine since our mind dictates the avoidance of danger rather than asking the sympathy of the public that he was responsibly driving his vehicle in the proper lane.
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
The doctrine of contributory negligence is also called “the shared responsibility rule” [It is only my view]. This refers to a situation where an unfortunate events [rhetorical term for accident] cannot exist if not by the voluntary act of the parties.
Illustration: Clarina participated in a bungee jumping adventure in Manipis Cliff. However, before the jumping adventure, the head of the team informed Clarina that the bungee jumping rope might not be capable of holding her because of her weight [probably 500 pounds]. Clarina suppressed the dissuasion of the team leader on her belief that the rope might even hold an elepant, hence jumped into deep height and vanished after the rope looses.
Comment: Clarina contributed to the negligence of the team leader. The negligence of the team master arises at his failure to prevent Clarina from participating, but Clarina also becomes negligent in her assertion to take part in the adventure considering the suggestion of the team master.
Purpose: The reason of knowing this doctrine is to minimize the liability of a party charged for negligence.
DOCTRINE OF VOLENTI NON FIT INJURIA
The doctrine is also known as “the assumption of risk rule”. The latin “volenti non fit injuria” suggests a concept about ”self inflicted injury”. This refers to the injury caused by the injured himself.
Illustration: Kobe was a ticket collector of a train bound from Brisbane to Sydney, when he asked a certain Dingwall to present the ticket the man run away to the nearer window and jumped off from the running train which resulted to Dingwall’s untimely death.
Comment: The absence of a ticket, the fear Dingwall entertained in his mind, and the act of jumping from the train are all his fault. The train cannot be said negligent because the procedure of asking for a ticket is a transportation standard in all civilized place.
DOCTRINE OF DAMNUM ABSQUE INJURIA
Damnum Absque Injuria literally means “damage without legal injury”. This doctrine presupposed the existence of a damage, only that there is no law in the determination of the offender party. Meaning, there is damage but there is no injury on the reason that the cause is not a result of a negligent act.
Illustration 1: Connor was driving a truck together with all his classmates. The truck was suddenly struck by a lightning that caused it to bump at a place full of people.
Comment: Connor cannot be said to be negligent because the cause is not his negligent act but a sudden distraction that stops the natural consciousness of every man at the time of the incident. There is no injury although there is damage because the term “injury” brings the concept as being the result of a deliberate or a negligent act.
Illustration 2: Constancio Gacalibang is a stateless person who was killed in Iraq while he was roaming around in the City of Baghdad. In International Law, a stateless person is considered as a person owned by nobody. Hence, Mr. Gacalibang’s death maybe a damage to his family but there is no legal injury against any state.
Comment: The doctrine of damnum absque injuria is applicable to the case of Constancio Gacalibang because there is no state considered to be the injured party in case of death of a stateless person. In International Law, a state is not authorized to assert on the right of a person in another state when the person is not its citizen. This is because a state has no interest and has no standing in another territory for a person not its national. The status of stateless may be acquired by a person when he was born at a place who grants only citizenship by blood [jus sanguinis] and his parents were from the place who grants only citizenship by land of birth [jus solis].
Example of Statelessness: X, an American citizen, gave birth to Y while having her vacation in Spain. Y is considered a stateless person because America does not grant citizenship to any child of its citizen when the child is born outside America [America adheres to Jus Solis], and Spain does not grant citizenship to any child unless born of both Spanish parents [Spain adheres to Jus Sanguinis].
DOCTRINE OF FORCE MAJEUR
Force majeur is referring to a “strong force” which a person has no control. Something which is beyond the control of man or anything under uncontrollable circumstance.
Illustration: Jose was sued for failure to deliver a masterplan to Meacham Corporation. The failure to deliver was due to the destruction of a bridge connecting one place to another which occurred many weeks before the obligation to comply takes place.
Comment: Jose is not liable for his failure because it was not caused by his negligence but by some circumstance beyond his will and capability. This is a situation where an ancient phrase could be applied – “NO ONE IS OBLIGED TO COMPLY AN IMPOSSIBLE DUTY”.
RESPONDEAT SUPERIOR
Respondeat superior is a delegated responsibility rule. It means that a negligent act of a person is deemed to be coming from the authority who commissioned the person’s work. It suggests that the act of a servant is considered to be an act of the master.
Illustration: A security guard of a Mansion owned by Mrs.Gikegwa shot an intruder after refusing to yield on a “stop order”. The security guard was charged of injury.
Comment: The act of a security guard is considered as the act of the owner who hired him because his function is hinged upon a contract to do or to perform an act of initiative to protect the person who hired him. Hence, his act is considered as an act with permission from authority. The owner should answer in behalf of the actions taken by the security guard.
PROXIMATE CAUSE RULE
This refers to the first cause of event. It refers to the adequate and efficient cause which naturally produce the logical result.
Illustration: A driver of a bus was hit by a solid object thrown by one passenger who had a fight with another passenger which resulted to the collision with another vehicle.
Comment: The proximate cause of the incident is not the negligent act of the driver because the first cause of the event was coming from a passenger who threw a solid object that caused the distraction of the driver’s driving concentration which resulted to the collision with another vehicle.
With the hope that this contribution be of intellectual help to our evaluation and judgment on events pertaining with human imprudence. -Barrister79
Ancient Legal Doctrines Involved in Negligence Cases: Comments and Simplified Explanation
I humbly presumed that it is widely understood that the lack of diligence is the essence of what is called “Negligence”, the term then signifies as the absence or the lacking of caution which an ordinary man of common sense should observe.
Thus, I defined “Negligence” as a failure of what a prudent man anticipates; a failure of apprehension on the reasonable consequence of an act; the failure in the anticipation of a natural result of an act or omission.
In negligence cases, there are so many corners of events from which an incident might be interpreted in accordance with the circumstances of time, place and some other situations. Almost all of the principles involved date back to the time of ancient civilizations, most of them were from Rome, that is still useful even to this day of our time. Only that not all of these doctrines were accessible to our direct understanding – meaning, these doctrines in generality are not easy to understand. Hence, to explain them in the simpliest term is a necessity in this attempt.
Before anything else, we will try to discover in the first place the two types of negligence; it is the negligence of doing [it means, to constitute a negligence, the actor must have done a negligent act] and the negligence of non-doing [it means, to constitute a negligence, the actor failed to observe some standards dictated by human reasoning. It is also called negligence of omission].
THE LAST CLEAR CHANCE DOCTRINE
The doctrine of last clear chance refers to the situation whereby a party who had the last opportunity to avoid or to escape the danger is considered to be negligent when he failed to evade from the impending harm.
Illustration: Mario Gitubol was properly driving his car in the proper lane; when he observed that a car in opposite direction was running in the same lane of the road, Mario Gitubol did not bother to take the other lane on the basis of his belief that he will be favored in the courts of law in case of collision case because he is driving his car in the proper lane. The two cars collided and the last clear chance is in him who had the opportunity to avoid the incident.
Comment: Mario Gitubol shall be considered negligent because the accident would not have occured had he avoided the car that was running in his lane. He had the last chance to avoid the mishap; the fact that he was running his vehicle in a right lane does not totally cleared him from being negligent. The doctrine of last clear chance appeared to be unfair for those who were prudent; In my opinion, the person who detects danger and failed to avoid it is not and never to be considered as prudent. In fact, it is the most reasonable doctrine since our mind dictates the avoidance of danger rather than asking the sympathy of the public that he was responsibly driving his vehicle in the proper lane.
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
The doctrine of contributory negligence is also called “the shared responsibility rule” [It is only my view]. This refers to a situation where an unfortunate events [rhetorical term for accident] cannot exist if not by the voluntary act of the parties.
Illustration: Clarina participated in a bungee jumping adventure in Manipis Cliff. However, before the jumping adventure, the head of the team informed Clarina that the bungee jumping rope might not be capable of holding her because of her weight [probably 500 pounds]. Clarina suppressed the dissuasion of the team leader on her belief that the rope might even hold an elepant, hence jumped into deep height and vanished after the rope looses.
Comment: Clarina contributed to the negligence of the team leader. The negligence of the team master arises at his failure to prevent Clarina from participating, but Clarina also becomes negligent in her assertion to take part in the adventure considering the suggestion of the team master.
Purpose: The reason of knowing this doctrine is to minimize the liability of a party charged for negligence.
DOCTRINE OF VOLENTI NON FIT INJURIA
The doctrine is also known as “the assumption of risk rule”. The latin “volenti non fit injuria” suggests a concept about ”self inflicted injury”. This refers to the injury caused by the injured himself.
Illustration: Kobe was a ticket collector of a train bound from Brisbane to Sydney, when he asked a certain Dingwall to present the ticket the man run away to the nearer window and jumped off from the running train which resulted to Dingwall’s untimely death.
Comment: The absence of a ticket, the fear Dingwall entertained in his mind, and the act of jumping from the train are all his fault. The train cannot be said negligent because the procedure of asking for a ticket is a transportation standard in all civilized place.
DOCTRINE OF DAMNUM ABSQUE INJURIA
Damnum Absque Injuria literally means “damage without legal injury”. This doctrine presupposed the existence of a damage, only that there is no law in the determination of the offender party. Meaning, there is damage but there is no injury on the reason that the cause is not a result of a negligent act.
Illustration 1: Connor was driving a truck together with all his classmates. The truck was suddenly struck by a lightning that caused it to bump at a place full of people.
Comment: Connor cannot be said to be negligent because the cause is not his negligent act but a sudden distraction that stops the natural consciousness of every man at the time of the incident. There is no injury although there is damage because the term “injury” brings the concept as being the result of a deliberate or a negligent act.
Illustration 2: Constancio Gacalibang is a stateless person who was killed in Iraq while he was roaming around in the City of Baghdad. In International Law, a stateless person is considered as a person owned by nobody. Hence, Mr. Gacalibang’s death maybe a damage to his family but there is no legal injury against any state.
Comment: The doctrine of damnum absque injuria is applicable to the case of Constancio Gacalibang because there is no state considered to be the injured party in case of death of a stateless person. In International Law, a state is not authorized to assert on the right of a person in another state when the person is not its citizen. This is because a state has no interest and has no standing in another territory for a person not its national. The status of stateless may be acquired by a person when he was born at a place who grants only citizenship by blood [jus sanguinis] and his parents were from the place who grants only citizenship by land of birth [jus solis].
Example of Statelessness: X, an American citizen, gave birth to Y while having her vacation in Spain. Y is considered a stateless person because America does not grant citizenship to any child of its citizen when the child is born outside America [America adheres to Jus Solis], and Spain does not grant citizenship to any child unless born of both Spanish parents [Spain adheres to Jus Sanguinis].
DOCTRINE OF FORCE MAJEUR
Force majeur is referring to a “strong force” which a person has no control. Something which is beyond the control of man or anything under uncontrollable circumstance.
Illustration: Jose was sued for failure to deliver a masterplan to Meacham Corporation. The failure to deliver was due to the destruction of a bridge connecting one place to another which occurred many weeks before the obligation to comply takes place.
Comment: Jose is not liable for his failure because it was not caused by his negligence but by some circumstance beyond his will and capability. This is a situation where an ancient phrase could be applied – “NO ONE IS OBLIGED TO COMPLY AN IMPOSSIBLE DUTY”.
RESPONDEAT SUPERIOR
Respondeat superior is a delegated responsibility rule. It means that a negligent act of a person is deemed to be coming from the authority who commissioned the person’s work. It suggests that the act of a servant is considered to be an act of the master.
Illustration: A security guard of a Mansion owned by Mrs.Gikegwa shot an intruder after refusing to yield on a “stop order”. The security guard was charged of injury.
Comment: The act of a security guard is considered as the act of the owner who hired him because his function is hinged upon a contract to do or to perform an act of initiative to protect the person who hired him. Hence, his act is considered as an act with permission from authority. The owner should answer in behalf of the actions taken by the security guard.
PROXIMATE CAUSE RULE
This refers to the first cause of event. It refers to the adequate and efficient cause which naturally produce the logical result.
Illustration: A driver of a bus was hit by a solid object thrown by one passenger who had a fight with another passenger which resulted to the collision with another vehicle.
Comment: The proximate cause of the incident is not the negligent act of the driver because the first cause of the event was coming from a passenger who threw a solid object that caused the distraction of the driver’s driving concentration which resulted to the collision with another vehicle.
With the hope that this contribution be of intellectual help to our evaluation and judgment on events pertaining with human imprudence. -Barrister79
May 19, 2008 Posted by barrister79 | Civil Law, Commentary, Common Sense, International Traditions, Interpretation & Construction, Jurisprudence, Law, Law on Negligence, Legal System, Thesis | Defenses, Legal Doctrines, Negligence Cases, Torts and Damages | 1 Comment