The Element of Alternative Liability

Table of Content

When the defendant is able to prove contributory negligence it usually bars the plaintiff from recovery. As a result of the barring from recovery, the view of this defense is deemed unfair in some cases. Most states prefer to determine the amount of damage by comparing the negligence of the plaintiff and the defendant. Comparative negligence is a defense used by the defendant which allows the plaintiff to recover only a portion of the damages (4). The jury will determine a percentage of faults for both the plaintiff and the defendant. The percentages determine he amount the plaintiff is entitled to.

Assumption of risk is another defense the defendant may use to avoid responsibility of the plaintiffs recovery. This is used when the plaintiff was aware of the risks they would be exposed to and of their own free will exposed themselves to it (4). The assumption of risk can be expressed or implied. Mitigation and avoidable consequences are other ways which may reduce the amount of recovery a plaintiff is requesting. Courts will look at the plaintiffs actions prior and post a tortuous event happening. Examples include vehicular accidents which result in injury.

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It is the duty of an individual to use whatever means are reasonable to avoid or minimize damages. In regards to an avoidable consequence, did the plaintiff put themselves in a position where an accident or injury was reasonably high? An example would be driving in extreme weather conditions for a non emergency. This defense may prevent recovery. Apportioning Damages The Trier of fact will consider the actions of each party when they determine the percentages of fault. Included in this analysis are the nature of the conduct of each party and the extent of the causal relations between the conduct and the images (1).

The Common law remedies in Tort cases usually include the recovering of monies and some legal right. Compensatory damages are awards for harms suffered (1). Usually, this includes loss of time or money, bodily pain and suffering, permanent disabilities or disfigurement, injury to reputation, and mental anguish (4). Punitive damages are meant to punish the defendant and not compensate the plaintiff. Punitive damages are awarded to those whose conduct were considered malicious, evil or morally corrupt and are additionally meant to act as a deterrent for others.

When there is a case of an invasion of a right or breach of agreement but with no injuries, nominal damages are sought. An example would be a person who is guilty of trespass. Courts award nominal damages because it’s the only way the court can establish the validity of the plaintiffs claim (4). Definitions Defamation is false statements made by on person about another (2). In court, the defendant must prove that the defendant made an untrue statement of fact about the plaintiff and the statement was intentionally or accidentally published to a third party (2).

These cases usually involve the famous or those in politics. People in those positions earn their income based on reputation, looks, in addition to their abilities. When a person claims to a news agency that an actress/actor has gotten surgery, their ability to find work can be affected as a result. Medical malpractice is a professional negligence by a health care provider. The providers actions or lack there of fall below the standard of treatment accepted by the medical community. The malpractice usually ends with injury or death to the patient. Usually, this involves a medical error.

The case of Batching v. Washington illustrates an example of medical malpractice. A doctor assessed an unborn bays position in the womb of his mother to be face down. As result, a specific procedure was used in delivering the child which resulted in brain damage to the child. Misrepresentation of fact occurs when someone makes a false statement of fact to induce someone into a contract. An example is when someone advertises the vehicle as “problem free” to entice someone to buy it when in reality, it was involved in a prior accident and covered up.

Opinion on Batching v. Washington Alternative liability exposes an actor to liability even when there is a possibility hat the plaintiffs harm was entirely caused by someone else (1). To me, this case involving baby Adam clearly illustrates the Alternative Liability Theory and should certainly shift the burden of proof over to the defendants. The problem have with this case is that the plaintiffs counsel allowed them to settle with the one of the persons they believed was liable, Dry. Cohn.

Unfortunately, at trial to shift the burden of proof, all defendants accused of negligence are necessary. Some facts associated with this case include Dry. Cohen assessing the Dam’s position in the womb as face down. This assessment is associated tit an abnormal labor. As result, different retrieval methods may be used to deliver the baby. Dry. Cohen began attempting to deliver Adam, exhausting many options which led to the use of forceps. The forceps slipped off Dam’s head several times with negative results regarding the delivery. The baton was passed to Dry.

Brady. Dry. Brady was able to deliver Adam with the use of forceps. The result of the misdiagnosed positioning of Adam was the delivery of a baby with injuries that Adam still suffers from (mild cerebral palsy and permanent motor and perceptual dysfunctions). The average person does not have the expertise o point the finger at Dry. Cohen or Dry. Brady. It requires a person of equal or greater skill with experience in that field. The burden of proof must lie amongst the two who created the risk of harm to Adam. Unfortunately, the two were not present at trial.

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The Element of Alternative Liability. (2018, Jun 23). Retrieved from

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