Negligence

Who is Eligible:

What are the Benefits:

For example, if a construction worker is injured because a ladder was not properly secured to prevent it from falling, his employer, and the contractor that hired the employer, are responsible for the failure to secure the ladder.

While the worker can recover a maximum of $400 per week as a workers compensation benefit, he is entitled to receive the full amount of his lost wages in a negligence case.

If he was earning $1,000 per week at the time of the accident, he can recover that full $1,000 per week while he is disabled.

Also, workers compensation provides no payment for the pain of the injury, or the suffering endured, while a negligence case does provide such a payment. Insurance companies have used a rule of thumb that the pain and suffering from an injury is worth three times the amount of the lost wages and medical bills.

Workers compensation benefits, no fault benefits, and social security are designed to keep food on the table, but they usually won’t pay enough to maintain the mortgage. A negligence claim is the only way that the injured person will be fully compensated for his injury, to get back to the economic condition he was in before the accident.

Procedure: Call us.


The Common Law

The common law is the law that exists before the Legislature passes laws or statutes.  It is the law which has evolved over the many years that man has been in existence, thus, since the days of the caveman.  As Oliver Wendell Holmes said, it has evolved over time based on the experience of man, what he called the "felt necessities of the time".

Holmes, in his book "The Common Law", goes through the evolution of the common law from the very earliest days up to his time.  He says that the ideas which seem so very familiar and natural to us, and which we take for granted, were more often the result of laborious fights in the past.

Vengeance was the basis for the earliest forms of legal procedure.  The Roman Law and German Law grew out of blood feuds.  Gradually there grew an option to buy off the blood feud.  Initially, it was a option of the injured person to take money instead of wrecking vengeance.   As time went on, it became required legal procedure.  Killings, house burnings, and other physical acts of vengeance were replaced with the concept of compensation.

Blame for having committed a wrong was at the root of the need for vengeance.  As Holmes pointed out, "even a dog distinguishes between being stumbled over and being kicked."   So the early law related mostly to intentional wrongs, such as physical violence inflicted on another person.  It was as civilization evolved that wrongs that caused harms that were foreseen but not intended were included in the law of compensation, and that extension only occurred as a result of argument.

Of course thinking was fairly coarse, so that the early law tended to look only at the external act, rather than the mental state of the actor.  When the law became more refined, it started to look at whether the defendant was an innocent or culpable actor.  But the original liability for harm to another was rooted in the passion for revenge, and only gradually changed to its present form.

The concept of blame was broadened to include actions which were not blameworthy because the actor did something wrong, but because harm was done and between innocent parties it was fairer to place the responsibility on one party than the other.  For example, a dangerous animal escapes and injures someone.  The animal escapes even though its owner did everything reasonable to contain it.  Although the owner is not negligent, he must answer in damages for the injuries caused by his animal.  This is because as between innocent parties, he was less innocent because he owned the animal in the first place.

Another example is when an employee making a pizza delivery for his employer runs a stoplight and causes a collision.  The employer might ask why he has to pay those injured in the collision, since he wasn't driving.  Moreover, the driver had never run lights before and had a clean driving record.  How was he to know that on this occasion the driver would do something so careless.  But the answer has been, since the earliest days of the law, that the employer must take responsibility for the negligence of his employees.  The reason is that the employee is doing the work of the employer, acting for the employer, and absent that employment the accident would not have occurred.  Thus, as amongst innocents, he must bear responsibility.

Where Does Law Come From

Holmes points out that a very common phenomena is that a rule grows out of a custom, belief or need of the past, and then continues to survive long after the custom, belief or need has disappeared.  Eventually someone dares to question the reason for the rule.  At that point, there is an inquiry as to the grounds for the rule.  Either the need for the rule in the present day is found, and the rule continues to exists, with a new reason for it, or the rule is changed.  But at some point old rules must be re-examined to see whether the reason they were created in the first place still exist.  Times change and rules must change with them.  The mere fact that a rule is long-standing cannot be the justification for the rule.  Rules should not exist without a need for them.

The moral and political theories and public policies resulting therefrom and the prejudices that judges shared with other people of their time had more to do with performing the law than did logic, according to Holmes.  It stands to reason therefore that the judges that were able to rise above the incorrect aspects of thinking of the day were the ones who went down in history as being great judges and leaders of their day.

The realists' school of law spun from Justice Holmes's view that judges make decisions not from logic alone, but from the needs the judge felt.  Dean Pound, Cardozo, and many other judges and educators were members of the realists school of ;aw.

 

to be continued