Lawyers and Consumer Protection Laws - Case Study Example

Student’s Name: Instructor’s Name: Course Code & Name: Date of Submission: ISSUES IN THE CASE Mason, John and Janice were celebrating after passing there degree after celebration at Window Point they decided to go to Look point. Look point is nearer the cliff but was separate the cliff from the people was a fence that was put by Willow Council the fence is about 2 meter but the cliff is clearly seen even from far. The Council did not put a warning sign beside the fence, which can be a bit dangerous. John was so furious to know more about the cliff so he had to jump over the fence to get a clear view of the cliff, John had drink a lot so he no longer want to drink, he made a signal to his friends that he want to walk to the edge of the cliff his friends were reluctant to warned him or even to console him about the dangers of climbing the cliff, hence he climbed over the fence and went near the cliff, John was enjoying himself bearing in mind that he want to release himself after a tiresome time of waiting for the results it was at this time that the accident occurred leading John to broke his leg after falling from the cliff, when he went near the cliff. RELEVANT LAW The first to do is to establish a liability to justify what the defendant did hence imposing the cost of injury upon the defendant rather than the claimant. There are things to apply like negligence, but the defendant may have acted reasonably but there are other factors that caused the injury in which the claimant would have not gone through but due to the factor that the defendant did not saw that the accident occurred (Bradgate and Savage). Negligence is an act whereby a person fail to do something in which a reasonable person would have do but depending on other situation he might be able to do, which caused another person to be injured or loss his or her life. But there must be relevant evidence to show the effect of that negligence and to what extend will it have applicable if the person was reasonable (Easterbrook). How to determine negligence There are critical areas of concerned Defendant breaching their duty of care Is there any harm caused due breach of care to the claimant? Did the claimant owe the defendant a duty of care? Was the damage foreseeable? DEFENDANT BREACHING THERE DUTY OF CARE Duty of care- this an obligation used to escape harm and it comes up where the harm is rationally foreseeable if concern is not taken. In order for the duty of care to work well there must a close relationship between the two people, like a doctor and a patient (Emerson). In what circumstances is the duty of care breached. In order to get clearly the court of law will have to look the standard of care that can be applied in that situation, the court will have to look an instance whereby a reasonable person would have done in that situation where the defendant did not perform hence breaching the duty of care (Emerson). IS THERE ANY HARM CAUSED DUE BREACH OF CARE TO THE CLAIMANT? In many occasion the injuries are more likely seen, like a slippery flow whereby a person slide while walking on the floor, but in this instance again the defendant may be liable if he did not show a warning of a slippery floor hence the claimant will have to claim breach of care (Hansen). The other possible and a very complex one is that may be this person had got injured awhile in other incidents hence the defendant will not be liable for the accident. DID THE CLAIMANT OWE THE DEFENDANT A DUTY OF CARE? A duty of care sometimes may be imposed and in one way or another does depends on the relationship the two parties, although statute creates a duty of care that does not applies in creating common law duty (Hansen). WAS THE DAMAGE FORESEEABLE? This applies to the foreseeable and the remoteness, if it happened that defendant caused the accident they cannot be answerable to everything that be looked upon on the origin item, the defendant will only be responsible for the damage if it was foreseeable consequence of the breach of duty. In that situation it is not necessary to show that defendant should have look upon what could have happen. the defendant must takes the claimant in the situation he is for example the defendant carelessly staped the claimant on the stomach the defendant will be liable even if the damage was not foreseen (Hansen). WILL JOHN SUCCEED? John to success will depend on many possibilities as per the law it will be a bit difficult for him to breach the duty according to the consumer there is no negligence in which should be followed strictly it is this law that will determine the vet of John, going per this law John will not succeed in the breach of duty owing many factors that contribute to this: Their main factor in the case of John will be the negligence of the defendant the negligence is dived into three four section where it should be critically be looked upon so as the judgment to be fair. DEFENDANT BREACHING THERE DUTY OF CARE We will have to see fast the relationship between the defendant and the claimant was there any relationship between them in the Case of John and Willow Council John, the cliff was built by the council to attract the members of the public which act as scenery for the public the main thing for this was to see that members enjoy themselves, hence it was not the duty of the Council to take because it was a public facility aimed to be a public facility, when it comes to court order it will have to look the standard at which the damage happened and if John was in the shoe of Willow will he have perform fairly like a reasonable person. John was influenced by alcohol as from the evident that he had taken a lot of alcohol and even both another one on his to the cliff, reasonable personable could have not act the way John acted (Macaulay). IS THERE ANY HARM CAUSED DUE BREACH OF CARE TO THE CLAIMANT? John broke his leg when he fell from the cliff when he was trying to get a clear few of the cliff, at that John was in influence of alcohol and he was not able to see the dangers that the cliff imposed on the people, council had built a fence to prevent the people from going beyond the cliff, although the council did not put a notice around the cliff in John cases he could not have seen cause he was under the influence of alcohol, although the council did not put a warning around the cliff the cliff was clearly seen and the reasonable person could have seen the cliff considering the reasonable person who is not under the influence of alcohol could have clearly see the dangers imposed by the cliff hence it was not the duty of the council but the duty of the claimant to take care (Moreno). WAS THE DAMAGE FORESEEABLE? The cliff was set by the Council for attraction purpose and to make the members of public enjoy themselves enjoy themselves accident the act of foreseeable act cannot be implied because a reasonable person who is on any influence could have seen the danger of the cliff, also the council did not expect a person to cross the cliff because people with reasoning capacity would not by pass the cliff. According Romeo VS NTC conservation Risk entrant failure to take care for his or own safety. CONCLUSION In this case of John it will be upon the court to look a lot of consideration bearing in mind that John caught a lot of injuries and also he was influenced by alcohol in that case, a reasonable could have acted differently unlike what John did if he was not under the influence of alcohol he could have cross the fence covering the cliff and also the cliff was clearly seen, the council would have not seen and foreseeable risk, even putting a notice near the cliff could not have prevented the Claimant from crossing the fence because under the influence of alcohol he was no in the capacity of reading the warning at that time. Council had taken care of the people viewing the cliff by putting a fence which will prevent people from crossing it hence it was not a point of negligence here. John should have to canceled the case as it because of is action of not taking. MASON WISHES TO SUE THE WINE COMPANY WILL HE SUCCEED. Mason was opening the cap of the champagne bottle that trio purchased it had a got a special kind of cap instead of usual which is always a cork and metal. When nothing came out he tried to shake eventually the champagne came out with the stopper which injured him and sustain injuries for three weeks. According to Mason there was no any warning on the cap (Oyakhilomen and Sokefun). Mason should contact the wine company and tell the company the damages caused by the unique cap on champagne, if the company and Mason will not come to an agreement that is when he will have to go to court. The first thing he will do is to write to the company about is complaint that he will be going to court if they had come in agreement with company, and Mason should keep the letter so that he can producing at the court, this action is letter before action (Moreno). The kind of the case is that of negligence like the first one whereby the company did not take the actions to prevent the damages caused. WAS THE DAMAGE FORESEEABLE? This applies to the foreseen and the remoteness, if it happened that defendant caused the accident they cannot be answerable to everything that be looked upon on the origin item, the defendant will only be responsible for the damage if it was foreseeable consequence of the breach of duty. In that situation it is not necessary to show that defendant should have look upon what could have happen. the defendant must takes the claimant in the situation he is for example the defendant carelessly staped the claimant on the stomach the defendant will be liable even if the damage was not foreseen (Oyakhilomen and Sokefun). Mason will not be able to succeed in the case because of the factors that covered the accident, the act of Defendant breaching their duty of care foreseeable damage the damage was not foreseeable by the company hence they accept the consumer to open the bottle carefully (Oyakhilomen and Sokefun). Court of law will have to apply the standard care whereby if the claimant was given an opportunity will have prevent the damage caused, although the company fail to indicate how to open the cap it was beyond reasonable doubt that the claimant would have used his knowledge to open the cap but not shaking. CONCLUSION Mason could have used his experience of long time to open the cap; hence the suing the company cannot succeed because the company knew that the consumer will use is reasoning capacity to open the cap but not shaking it. The cost of suing the company will be more likely high other than having keep quiet, Mason could have try to use out of court settlement to settle the issue. REFERENCE Macaulay, Stewart. 'Lawyers And Consumer Protection Laws'. Law \& Soc'y Rev. 14 (1979): 115. Print. Oyakhilomen, Godwin Ifidon, and Justus A Sokefun. 'Introduction To Law'. National Open University of Nigeria (NOUN) (2009): n. pag. Print. Bradgate, Robert, and Nigel Savage. Commercial Law. 1st ed. London: Butterworths, 1991. Print. Emerson, Robert W. Business Law. 1st ed. Hauppauge, N.Y.: Barron's, 2004. Print. Hansen, Charles. 'The Duty Of Care, The Business Judgment Rule, And The American Law Institute Corporate Governance Project'. The Business Lawyer (1993): 1355--1376. Print. Moreno, Richard D. 'Scott V. Corkern: Of Precedent, Jurisprudence Constante, And The Relationship Between Louisiana Commercial Laws And Louisiana Pledge Jurisprudence'. Tul. Eur. \& Civ. LF 10 (1995): 31. Print. Easterbrook, Frank H. 'Federalism And European Business Law'. International Review of Law and Economics 14.2 (1994): 125--132. P Read More