Simple Negligence Research Articles

Analisis Kealpaan yang Mengakibatkan Matinya Orang Ditinjau dari Pasal 359 KUHP

The Criminal Code in force in Indonesia, regarding criminal acts that result in the death of a person in "Title five years or a maximum prison sentence of one year, while Article 360 of the Criminal Code states "Due to his fault (culpa) causing a person to be seriously injured or injured so that the person becomes temporarily ill or unable to carry out his position or work temporarily." When the Criminal Code was formed, conscious negligence was a more serious form than unconscious negligence. This means that the pattern of simple negligence is that people use violations of the law without realizing it at all. He didn't know, didn't think it through first or was wise. But a more serious type of negligence is conscious negligence, that is, if at the time of action the possibility of causing a prohibited consequence was realized, but because of intelligence or the absence of actions to prevent it, it was hoped that this possibility would not arise.

The liability of salvors towards third parties in case of environmental salvage: Economic analysis

Marine salvors play a crucial role in rendering emergency response to maritime accidents. Their services generate positive externalities for preventing or minimizing damage to property and the environment. However, due to the uncertainties in environmental salvage, the services could also lead to further harm to third parties through acts of negligence. A negligent salvor is not immune to legal obligations but the legal risks of liability should not be excessively high to discourage them from providing socially desirable services. This article examines the consequences of salvorial negligence in environmental salvage in light of economic analysis of law as well as certain maritime law notions such as channeling provisions and limitation of liability. It concludes that given the uncertainties in determining, among other things, the levels of care involved, there is a danger that too strict a liability regime might deter salvors from engaging in environmental salvage. The legal regimes examined may grant a salvor immunity from liability for simple negligence but issues involving the international ship-source pollution compensation regime and public intervention can still discourage them from carrying out environmental salvage.

Cyber attack risks to construction data management in the fourth industrial revolution era: a case of Gauteng province, South Africa

The 4IR or the digital revolution refers to a collective term for a value chain organizational concepts and technologies that together build the Internet of Things, Internet of people, Cyber-Physical Systems (CPS), Internet of Services and the Internet of Energy. While this digital revolution has helped the construction industry to prevent cost and time overruns and enable efficiency and good work’s quality, it also has disadvantages and risks such as cyberattacks and loss of jobs. This study set out to determine the risks associated with data management (cyberattacks) on construction projects in the fourth industrial revolution era. The research study will address the questions of “what are the cyberattacks risk attributed to construction data management in the fourth revolution era?” and “What are the differences in the opinion of respondents concerning the identified cyberattacks?”. This research work used a quantitative method and gathered information from different construction professionals in the South African construction industry precisely in Gauteng province via a well-structured questionnaire through online platforms. These professionals involve quantity surveyors, architects, civil, mechanical, and electrical engineers practising under a firm, company, organisation, or institution within the Gauteng province, South Africa. Findings revealed that viruses, hacking, and password cracking are the most frequent risk to data management encountered in the construction industry. It was also indicated that construction project stakeholders need a strong knowledge of how attackers operate to address, avoid, and stop the different risks rising when executing a project. The study contributes to the body of knowledge by highlighting the various risks encountered in managing data in the construction industry which will assist professionals in the industry to pay attention to means of mitigating the identified risks. This will keep stakeholders abreast of how simple negligence from their side can deeply affect the project data thereby affecting project delivery. It was concluded based on findings that construction professionals need to avoid the occurrence of these risks to enhance satisfactory project delivery and protect their project information. The study recommended that all construction project parties require full training sessions on risks to data to prevent any types of intrusion into the company’s information system.

Responsibility and the Duty of Rescue

ABSTRACTWhat difference might it make to the duty of rescue if the victim is responsible for needing to be rescued? Having distinguished the natural duty of rescue owed as a result of a chance encounter from the artificial duties of rescue that may be created by agreement among participants in high‐risk activities, I examine three ways in which the victim's responsibility might lessen the stringency of the duty: by lowering the cost threshold above which rescue ceases to be a duty; by lessening the force of the duty when it competes with other duties of justice; and by making the duty unenforceable by third parties. I then consider different forms the victim's responsibility may take: simple negligence, deliberate risk taking, and engaging in wrongful behaviour. There are only two circumstances in which the duty of rescue is entirely eliminated as a duty: when by virtue of repeated risk taking, the victim unfairly imposes excessive costs on his rescuer, and when rescuing the victim would allow him to continue threatening harm to others. In other cases, however, responsibility considerations should qualify the natural duty of rescue: rescue should not be a responsibility‐free zone.

The Price of Medical Negligence – Should it Be Judged by the Criminal Court in the Context of the Jurisprudence of the European Court of Human Rights?

Abstract The article deals with a recently relevant issue – whether a doctor who has made an error or was negligent during his or her professional activity that has resulted in injury or death should be prosecuted, whether this type of liability is not too strict, and whether it is proportionate and adequate to the specificities of the medical profession. From the point of view of criminal justice in Lithuania, this topic has not been investigated at all. The courts hear such criminal cases without any exceptions for doctors. However, in an international level, the judgments of the European Court of Human Rights or investigations in other states suggest that criminal liability is not always a binding legal consequence in such cases. After having analysed and summarised the case-law of the said court, by taking into account the insights of foreign authors, the danger of medical error and ultima ratio principle, the author raises the idea that the current practice in civil medical negligence when doctors are prosecuted for simple negligence should be changed.

Haftung für nicht autorisierte Zahlungsvorgänge (§§ 67, 68 ZaDiG 2018)

From a civil law perspective, the rules of the PSD II and the Austrian Payment Services Act 2018 (“ZaDiG 2018”) on unauthorized payments are of particular importance. Section 68 ZaDiG 2018 provides for a graduated system of liability. In case of simple negligence, the customer is only liable up to 50 EUR. Even in case of gross negligence liability can be reduced by the court. Only in case of fraud and intentional violation of his obligations pursuant to section 63 ZaDiG 2018 the customer is always fully liable. The article examines in particular the delineation between simple and gross negligence, but also questions like the assertion of claims and the burden of proof.

Liability and the Use of Prescribed Fire in the Southern Plains, USA: A Survey of District Court Judges

Suppression of historical fire regimes has changed the composition and structure of many fire-dependent ecosystems, frequently resulting in decreased grazing productivity and biodiversity in grasslands and savannas. Land managers have attempted to reverse these trends through the application of prescribed fire, but regulations and liability concerns often deter them. District court judges play a key role in defining the legal context of prescribed burning by interpreting applicable statutes in personal injury or property damage cases resulting from escaped prescribed fire. However, information about the way judges interpret open burning statutes and regulations is difficult to obtain. We conducted a mail survey of district court judges in Texas and Oklahoma, USA to shed light on decisions judges might make presiding over an escaped fire case. The survey included questions regarding their perception of prescribed fire, their understanding of the laws affecting prescribed burning, and hypothetical questions to determine how they would apply relevant law in an escaped fire case. We found that judges cited fewer factors as evidence of gross negligence than simple negligence. This suggests that a shift toward a gross negligence liability standard for escaped prescribed fire cases might result in fewer findings of prescribed burner liability.

New Rules on Patient's Safety and Professional Liability for the Italian Health Service.

The phenomenon of clinical negligence claims has rapidly spread to United States, Canada and Europe assuming the dimensions and the severity of a pandemia. Consequently, the issues related to medical malpractice need to be studied from a transnational perspective since they raise similar problems in different legal systems. Over the last two decades, medical liability has become a prominent issue in healthcare policy and a major concern for healthcare economics in Italy. The failures of the liability system and the high cost of healthcare have led to considerable legislative activity concerning medical malpractice liability, and a law was enacted in 2012 (Law no. 189/2012), known as the "Balduzzi Law". The law tackles the mounting concern over litigation related to medical malpractice and calls for Italian physicians to follow guidelines. Briefly, the law provided for the decriminalisation of simple negligence of a physician on condition that he/she followed the guidelines and "good medical practice" while carrying out his/her duties, whilst the obligation for compensation, as defined by the Italian Civil Code, remained. Judges had to consider that the physician followed the provisions of the guidelines but nevertheless caused injury to the patient. However, since the emission of the law, thorny questions remain which have attracted renewed interest and criticism both in the Italian courts and legal literature. Since then, several bills have been presented on the topic and these have been merged into a single text entitled "Regulations for healthcare and patient safety and for the professional responsibility of healthcare providers".

Two Advantages of the Negligence Rule Over Strict Liability when the Parties are Risk Averse

AbstractWhen parties are risk-averse and therefore take out insurance, the efficiency of a tort rule depends on how well the insurance contracts govern incentives, risk allocation and transaction costs under the rule. This article presents two overlooked or discarded advantages of the rule of negligence over strict liability, which appear when insurance contracts are incomplete due to ex-ante transaction or ex-post verification costs. One advantage arises because of a legal impediment under strict liability: insurers cannot exempt coverage for all acts of simple negligence. Instead, the insurer must, at a cost, precisely specify each act for which coverage is excluded. Such specification can be prohibitively costly when there are many acts and many contingencies. These transaction costs, or the inefficient risk allocation associated with a deductible, are avoided under the negligence rule, where under idealized conditions the injurer can simply take due care and need not take out insurance. The other advantage of the negligence rule is that it provides incentives for the victim to bring forward information about the injurer’s acts. The victim has little incentive to convey such information under strict liability, whereas the victim’s insurer may elicit it, e. g. by not covering the victim’s loss fully.

Broadening the scope of loss and damage to legal liability: an experiment

ABSTRACTThe 2015 Paris Agreement represents a historic deal in the form of a strong international response to address climate change. This outcome came as a surprise for some, as several controversial issues had been postponed from previous conferences, and were expected to complicate the talks in Paris. One related to the Warsaw International Mechanism on Loss and Damage (L&D), and potential legal remedies for L&D in the form of compensation payments. This issue had been particularly contentious with some developing countries advocating ideas for climate damage liability, which developed countries were unwilling to include in an agreement. Although the negotiations on L&D secured many positive outcomes, Decision 1/CP.21 adopting the Paris Agreement notes that there is no possibility of claiming liability and financial compensation for developing countries. This article, however, argues that, rather than triggering endless compensation claims disputes, a liability mechanism could actually serve as a commitment and reciprocity device, ultimately increasing global policy ambition. In this regard, this article reports the results of two experiments testing the effects of liability rules on the climate policy investment decisions of two players that differ in wealth and vulnerability. Results show that liability rules imposing a responsibility for precaution on both parties increase cooperation significantly, consequentially minimizing risk of L&D occurrence in the first place. Liability rules could thus not only help to address future losses, but also to drive global mitigation and adaptation ambition.POLICY RELEVANCEThe research results presented in this paper suggest that policymakers would be well advised to further intensify negotiations on a climate-related compensation mechanism beyond that already committed to in the Paris Agreement. Our findings show that a compensation mechanism that implements a rather simple negligence rule makes climate cooperation more attractive and rewarding, potentially leading rich and poor nations to boost their investments in mitigation and adaptation for climate protection. Thus, far from opening up a Pandora’s box of endless compensation claims towards industrialized countries, a liability mechanism could make global climate cooperation more effective, and in the longer run also less costly.

Unreasonably Risky: Why a Negligence Standard Should Replace the Bankruptcy Code's Fraudulent Intent Analysis for Gambling Debts

An estimated two million Americans meet the criteria for addictive gamblers and roughly 90% of such gamblers withdraw cash advances from their credit card companies to finance their gambling habits. The Bankruptcy Code exists to allow the “honest but unfortunate debtor” to seek a fresh start. Are debtors who take borrowed money into a casino ever actually “honest but unfortunate?” The Bankruptcy Code currently allows cash advances used at casinos to be discharged in Chapter 7 bankruptcy just like any other credit card debt, as long as the debtor meets the standard criteria for filing Chapter 7. Case law demonstrates that credit card companies have a difficult time avoiding these discharges, as the law currently applies a “fraudulent intent” analysis in order to bar such a discharge. Proving fraudulent intent, however, is extremely difficult for creditors, as debtors will always say that they “intended” to pay back the loan, but their circumstances changed. Based on the statistical chances of losing money in a casino, a person who takes a cash advance into a casino is negligent in his or her handling of that borrowed money. Accordingly, this Article is the first to argue that the Bankruptcy Code should be amended to apply a simple negligence standard to credit card debts that were used for gambling, instead of the shaky “fraudulent intent” analysis. The portions of cash advances that are spent on gambling should not be dischargeable in bankruptcy under any circumstances.

Legal barriers to effective ecosystem management: exploring linkages between liability, regulations, and prescribed fire.

Resistance to the use of prescribed fire is strong among many private land managers despite the advantages it offers for maintaining fire-adapted ecosystems. Even managers who are aware of the benefits of using prescribed fire as a management tool avoid using it, citing potential liability as a major reason for their aversion. Recognizing the importance of prescribed fire for ecosystem management and the constraints current statutory schemes impose on its use, several states in the United States have undertaken prescribed burn statutory reform. The stated purpose of these statutory reforms, often called "right to burn" or "prescribed burning" acts, is to encourage prescribed burning for resource protection, public safety, and land management. Our research assessed the consequences of prescribed burn statutory reform by identifying legal incentives and impediments to prescribed fire application for ecosystem restoration and management, as well as fuel reduction. Specifically, we explored the relationship between prescribed burning laws and decisions made by land managers by exploiting a geographic-based natural experiment to compare landowner-prescribed fire use in contiguous counties with different regulations and legal liability standards. Controlling for potentially confounding variables, we found that private landowners in counties with gross negligence liability standards burn significantly more hectares than those in counties with simple negligence standards (F6,72 = 4.16, P = 0.046). There was no difference in hectares burned on private land between counties with additional statutorily mandated regulatory requirements and those requiring only a permit to complete a prescribed burn (F6,72 = 1.42, P = 0.24) or between counties with burn ban exemptions for certified prescribed burn managers and those with no exemptions during burn bans (F6,72 = 1.39, P = 0.24). Lawmakers attempting to develop prescribed burning statutes to promote the safe use of prescribed fire should consider the benefits of lower legal liability standards in conjunction with regulatory requirements that promote safety for those managing forests and rangelands with fire. Moreover, ecologists and land managers might be better prepared and motivated to educate stakeholder groups who influence prescribed fire policies if they are cognizant of the manner in which policy regulations and liability concerns create legal barriers that inhibit the implementation of effective ecosystem management strategies.

"Surgically created" excision of the back mimicking homicide: report of an unusual case.

Fatalities due to sharp force trauma, with respect to manner of death, may be homicidal, self-inflicted, or accidental in nature. This article presents a case of an unusual sharp force injury inflicted under very specific and seemingly obscured circumstances, initially suggestive of homicidal origin. A 69-year-old, socially isolated male was found dead with a strange, heavily blood-stained excision-like lesion on the right subscapular area. The autopsy confirmed that the wound led to fatal external blood loss. Toxicological analysis of the blood and urine revealed severe alcohol intoxication. The police investigation turned up that the man had suffered from a painful skin furuncle of the right upper back. As he was worried about receiving medical treatment, he voluntarily asked his two acquaintances for "surgical" assistance to remove the skin affection. Based on the circumstances surrounding death and findings at autopsy, it was concluded that the injury was inflicted without the intent to harm or cause death, as a result of simple negligence. Consequently, the manner of death was ultimately certified as an involuntary manslaughter. Our case has clearly illustrated that even highly suspicious and atypically shaped wounds created by sharp-edged instruments with localization in non-accessible body areas does not exclusively indicate homicidal activity, hence, the accidental, suicidal or even iatrogenic origin of the wounding mechanism must be taken into consideration.

Officers’ and Directors’ Liability Under German Law — A Potemkin Village

AbstractThe liability regime for officers and directors of German companies combines strict and lenient elements. Officers and directors are liable for simple negligence, they bear the burden of proof for establishing diligent conduct, and they are liable for unlimited damages. These elements are worrisome for the reason that managers are confronted with the full downside risk of the enterprise even though they do not internalize the benefits of the corporate venture. This overly strict regime is balanced by other features of the regime, namely comprehensive insurance and systematic under-enforcement. Even though the authority to enforce claims against the management is divided between three different actors - the supervisory board, the shareholders assembly, and individual shareholders - enforcement has remained the exception. Furthermore, under the current system of Directors’ and Officers’ (D&O) liability insurance, board members do not feel the bite of liability as they are protected by an insurance cover that is contracted and paid for by the corporation. Thus, the current German system may combine the worst of two worlds, i.e., the threat of personal liability for excessively high amounts of damages in exceptional cases, and the practical irrelevance of the liability regime in run-of-the-mill cases. The present Article analyzes the shortcomings of the present regime and submits proposals for reform.

Smallholder farmers' attitudes toward the provision of drinking water for dairy cows in Kagera, Tanzania.

Agriculture's large share of Tanzanian GDP and the large percentage of rural poor engaged in the sector make it a focus for many development projects that see it as an area of attention for reducing rural poverty. This paper uses a case of the Kamachumu community, where a dairy cow loan project was implemented using the heifer-in-trust (HIT) model. This study finds that productivity is limited by how the cows are being managed, particularly with many animals not having ad lib access to drinking water. The paper explores reasons why farmers do or do not provide their cows with unlimited access to drinking water. The study concludes that there are many barriers farmers face, including water accessibility, education and training, infrastructure, simple negligence, and security. These results suggest an increase in extension services and national and local livestock policies that consider the specific realities of small-scale dairy farmers.

Whither Notice Pleading?: Pleading Practice in the Days Before Twombly

Most scholars mark the end of notice pleading in federal civil cases at the time of the Supreme Court’s 2007 decision in Twombly v. Bell Atlantic or, at the latest, at the Court’s 2009 decision in Ashcroft v. Iqbal. Scholars have noted occasional departures from the notice pleading standards in more complex civil cases, but notice pleading has been thought to be the prevalent practice in simple negligence cases. This article examines two sets of complaints filed in federal district courts before Twombly in 2006 in cases alleging injuries from simple automobile accidents. We find that the practice of notice pleading, as indicated by Form 11 in the Appendix of Forms that accompany the Federal Rules of Civil Procedure, had already been abandoned in routine cases before Twombly in favor of narrative pleading that provides a fuller expression of the factual context of the claim. If pleading practice did not follow the notice pleading standard before Twombly in simple negligence cases that had the benefit of specific Form 11 guidance, it is doubtful that attorneys adhered to notice pleading in other more complex federal civil cases. In this regard, our findings also raise doubts about the utility of Form 11. While others have attributed the demise of notice pleading to concerns about abuse of discovery, the absence of notice pleading in these simple cases with little contentious discovery requires additional explanation. In discussing our findings, we also briefly explore the psychology of pleading and whether the emergence of narrative pleading was an unintended consequence of a series of amendments to the Federal Rules of Civil Procedure starting in the mid-1980s intended to allow more effective judicial management of litigation. While the Twombly/Iqbal plausibility standard certainly presents a heightened standard than notice pleading, the trend is clear: lower courts had already started to abandon the Conley notice pleading standard and pleading additional facts beyond the requirements of a notice pleading standard predated Twombly or Iqbal.

Hermana Hellera nauka o państwie. Wybrane zagadnienia

This article contains a summary of selected theses of the theory of the state developed by Hermann Heller, who was one of the leading representatives of the so-called Weimar Theory of the State. State theorists of the Weimar era formed an independent, formally unrelated group of scientists who had often opposing views, but were united by a common effort to conduct even philosophical investigation of the nature of the state, the European, continental state, as well as its internal ratio and mission. In addition to Hermann Heller, this group included Carl Schmitt, Rudolf Smend, Erich Kaufmann and Heinrich Triepel. They asked questions which are absent in today’s science, such as: “What is a state?”, “What kind of being is it and what is its nature?”. The answers determine many issues, including our perception of the durability and strength of the state, our understanding of its structure and development, the relation between the state and the individual and the relation between politics and history, etc. No settlement of this basic issue is not only simple negligence, but – as can be judged – it stems from today’s tacit assumption that the state is not a being, but only an artificial human construct, a combination of elements and a set of institutions. Heller perceives the state substantially: as particular organization of social affairs; organization of specific areas of public life: economy, law and public opinion. These were created in the modern era and have been specific to Europe from the sixteenth century to modern times. The matter of these areas is transformed into a state order by sovereign authorities. Therefore, their policies and their law have their concrete object whose reality they face, and they need to demonstrate that they are capable of organizing this reality. The ethos of the state and at the same time the legitimacy of its power require that elementary principles of justice are ensured, or at least injustice is eliminated from social life.

What Does the Law Say to Good Samaritans? A Review of Good Samaritan Statutes in 50 States and on US Airlines.: Stewart PH, Agin WS, Douglas SP. Chest 2013;143:1774–83.

The authors of this article reviewed Good Samaritan laws in 50 states and US airlines. The federal Aviation Medical Assistance Act (AMAA) is a federal statute limiting the liability of medically qualified individuals who respond to medical emergencies on a commercial airplane registered in the United States (US). The AMAA protects physicians from civil lawsuits in both federal and state courts when simple negligence (care is not rendered in the way that a reasonably medically qualified individual would have done so) is in question.

Is Simple Negligence Enough to Prevail?

(2011). Is Simple Negligence Enough to Prevail? Journal of Physical Education, Recreation & Dance: Vol. 82, No. 5, pp. 8-12.

The Concorde Accident Criminal Trial in France

On 6 December 2010, the Criminal Court of Pontoise (France) issued a guilty verdict against Continental Airlines and its employee, John Taylor and exonerated all of the French defendants, signaling the epilogue of the Concorde long running criminal proceedings arising out of the Concorde accident in Paris on 25 July 2000. On the basis of the expert reports issued by a pilot expert who had been working as a pilot of Air France for forty years at the time he was appointed by the Investigating Magistrate, the Court has rejected the principal argument for the defence of Continental Airlines and has determined the taxiing of the Concorde over the wear strip from the Continental Airlines DC 10 to be the sole cause of the accident. Continental's mechanic, John Taylor, was found guilty and sentenced for involuntary homicide and manslaughter because he had violated the rules of manufacture and attachment of the wear strip on the Continental DC10 and the simple negligence of Taylor's supervisor Mr Ford lead to the finding of criminal responsibility of Continental Airlines. By declaring Continental's submission as to the lack of objective impartiality of the pilot expert non admissible and time-barred the French Criminal Court has raised questions as to the role of equity and fairness in the French criminal system. The Court of Appeal of Versailles will review the first instance decision since all of the parties have appealed.