Modern democracy influences society in many aspects. Thus, the sphere of business is not an exception. In fact, the present liberal tendencies support the idea of private business development. On the contrary, the business sphere has to work in accordance with a certain set of legal principles. As a result, it provokes various contradictions. One of the most widespread is the so-called action of negligence. Considering this, it is necessary to review particular factors, which regulate the judgment of negligence.
To begin with, it is necessary to discuss the elements of a cause of action based on negligence. The U.S. law outlines the following elements: a duty of care, breach of duty, causation, and a loss or damage. The first is a compulsory responsibility, which is established by the law in order to regulate the procedure of the protection of others from possible harms and dangers. In general, all citizens are supposed to perform the duty of protection in relation to every single individual. Moreover, such responsibilities are exercised by those people, who are experts in the spheres related to the safety of other individuals. The next element is a breach of duty. In other words, it is a situation when a person fails to follow the standards of safe behavior. Actually, the latter are vague, but they generally determine what should not be done instead of outlining certain instructions. However, causation enables to research whether the action has been negligent. To be more exact, every negligent action is judged in accordance with a description of circumstances, in which it was taken. In such a way, the proximity of the cause is proven. In other words, the defendant is claimed to be liable if he or she does foreseeable harm to other individuals. In contrast, the proximity of the case is not proven if the victim should avoid harm on his or her own (Gostin 272-274). The last element, a loss or damage, simply means an actual personal offence with injuries. However, some of the latter are regarded legal.
Sometimes the negligent action occurs based on the intentional infliction of emotional distress. The plaintiff can recover damages for severe emotional distress caused by the defendant's negligent action or the violation of statutory standards. Still, the intentional infliction of emotional distress is regarded as a negligent action. Therefore, the same elements of negligence have to be applied. Apart from them, some specific factors exist as well. Thus, the so-called "direct victim" factor should be taken into consideration. To be more precise, it identifies whether the defendant has a duty not to provoke emotional distress as a matter of law. In addition, it is necessary to reveal whether the defendant and the plaintiff have special preexisting relationships, which underpin the negligent action (Mathews and Lancaster 27-28). In contrast, the defendant is not liable if he or she is claimed by a person in a "zone of danger" resulting from negligence. In this case, the plaintiff has been affected by someone's negligent action because of witnessing outcomes of this negligence. For instance, a woman got emotional distress due to being a witness of a car accident. Overall, the intentional infliction of such a state is claimed to result from a direct negligent action.
On the other hand, defense is still possible in case of a cause of action based on negligence. In fact, the most effective strategy is proving that the plaintiff has not made a "prima facie" case. Therefore, it means that the accident has happened without a negligent action, but as a matter of circumstances, the burden of proof is shifted to the defendant. Consequently, it is necessary to emphasize circumstances, under which the defendant has become an agent of the negligent action wrongly. For instance, an object fell out of the window and injured a pedestrian. Hence, the owner of the object is not liable because of "res ipsa loquitur" or so-called "thing speaks for itself" (Cane 60). In addition, it is necessary to consider motives of the defendant. He or she might act in a negligent way in order to prevent the occurrence of more serious negligent actions. For example, a doctor saw a pedestrian suddenly fall to the ground. The former started running to him and by accident injured other passer-by. In this case, the doctor was in a hurry in order to help the unconscious pedestrian.
However, quite another defense strategy should be chosen in case of assault and battery. To begin with, battery is intentional injuring of the plaintiff in a violent way by hitting, throwing objects, or even shooting. In this case, the most influential strategy is proving that defendant's actions are for the purpose of self-defense (Blanchard and Walter 94). The latter implies the right to physically injure other person, but using appropriate proportion of violence to respond to the threat. In other words, if the defendant was attacked by feast punches, shooting is not regarded to be self-defense. Besides, it is necessary to specify actual injuries of the plaintiff and compare them with the described claim of assault. In case defendant's actions do not coincide with the plaintiff's injury, the latter must be exaggerating.
To conclude, it is the basic principles of judging negligent actions. Finally, it is necessary to say that the discussed laws can be applied to the sphere of business, but at a more generalized level, because it may cause contradictions among organizations. However, the same laws work in exactly the same way.
Blanchard, Roderick, and Janis Walter. Litigation and Trial Practice. 6th ed. Clifton Park: Thomson Delmar Learning, 2007. Print.
Cane, Peter. The Anatomy of Tort Law. Portland: Hart Publishing, 1993. Print.
Gostin, Lawrence. Public Health Law: Power, Duty, Restraint. Los Angeles: California University Press, 2000. Print.
Mathews, Stanton, and Kevin Lancaster. California Causes of Action. Costa Mesa: James Publishing, Inc., 2013. Print.