Negligence

TD n°1: Negligence

1. Cross-examination

1. Who is the speaker?

The speaker is Gerry Oginski and he is a New You medical malpractice and personal injury trial lawyer.

2) What is a leading question? What is it traditionally opposed to?

A leading question is most often used when an attorney does cross examination. That’s the reason why an attorney will ask leading question is because he wants to control the witness. He doesn’t want to give the witness an opportunity to explain.

When you ask a leading question, you virtually create the answer. In other word, the lawyer know the answer to his question bu he wants the witness to say it.

The witness have to respond by yes or no.

Leading question is used by the lawyer to obtain certain information and the best way to do that is cross examination using leading questions.

3) What is the point of asking such questions for a lawyer?

For a lawyer, it’s a good way to heard the witness said something he want him to say, by simple question, the witness cannot try to go away from the question, he just be allowed to say yes/no.  

4) In what circumstances are leading questions (not) allowed?

They are not allowed if the witness have to respond by another words than « yes » or «no ».

B) Food for debate or negligence

1. What are the elements required for a finding of negligence?

• For finding a negligence the elements required are: duty of care, breach of duty, cause in fact, proximate cause, damage. In order: to find negligence, a plaintiff must definitively prove the following four elements:

• There was a duty on the part of the defendant to conform to a certain standard of conduct.
• That that defendant breached that duty.
• The breach of duty was, not only the actual cause, but the proximate cause of injury.
• There are damage.

1. What does the legal expression act of God mean? What is the French equivalent? What is the legal impact of an act of God?

It means an event that results from the natural causes that you could not have been prevented, it’s an inevitable accident.

The equivalent in French is « force majeure ».

It can make irresponsable the person who caused harm to someone else.

1. According to you, could Mr Blanston use that principle to defend himself?

No, indeed of course the tornado is a natural phenomenon, so Blanston could not have anticipated it. Therefore, it could not provide that the electricity will be cut off. moreover, the electric company determined that there was no imminent danger.

The problem is that it’s the electric company who caused a small electrical fire and who destroyed the site and the house neared the gasoline company. But this happened because Blanston didn’t inform the electric company that he was now operating on generators. This accident could have been avoided.

1. You are the plaintiff’s lawyer and have the opportunity to cross examine Mr Blanston. What questions would you ask him? Why?

• why you didn’t tell to the electric company the fact that you were operating on generators?
• Do you think you are responsible of what happened?
• Are you sure you took all necessary measures to avoid this?

1. According to you, what verdict should the court return in this case?

According to me, the court should found the defendant guilty because there is a breach of duty of care. Even if there was a natural fact, he didn’t took all the measures to avoid it.

1. According to you, what would be the appropriate punishment for Mr Blanston if he were found liable?

I think he don’t have to go in jail because no one was injured or dead,  but he have to pay a compensation to repair the harm caused.

...