Flip- Flop Case, McDuff against Gypsy - Essay Example

The law on negligence has been defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”Therefore what needs to be established is the fact that the conduct of the respondent fell below the standard that was required of her and as a result of that failure there was an unreasonable risk of harm, in fact, the harm occurred. The four elements of negligence that are required are that of duty of care, breach of that duty, actual cause, proximate cause, and damage, and these would be proved.

As stated in Fern A. Fogel vs. getting ‘N Go Markets, Inc. these must be proved so as to establish a plausible case of negligence. The courts, in this case, looked into the establishment of a duty of care and stated that when imposing a duty, the relationship between the parties, the reasonable foreseeability of harm to the persons injured, and public policy concerns would be taken into account and if any one of them would be found, the duty would be established. Even though Jipsy had no relationship of the contract with Mr.

McDuff, this as has been seen in the judgment is not the only relationship that can establish duty. The fact that both of them were driving was presently created a duty of care that would drive safely and not cause harm to other drivers. The second way of reasonable foreseeability of harm to the plaintiff is more than evident because clearly the acts and conduct of the respondent were foreseeable to result in harm being caused to the plaintiff. As far as public policy is concerned, clearly, it would be against public policy if such a duty of reasonable care to other drivers is not presumed.

Now the next step of breach of duty has been determined by courts by taking into account the probability of the accident occurring, the magnitude or gravity of the injury suffered by the plaintiff if an accident occurs; and the burden placed on the defendant to take adequate precautions to avert the accident.