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Questcor Pharmaceuticals, Inc. (QCOR) Message Board

  • kropy2002 kropy2002 Jul 13, 2012 3:29 PM Flag

    YOU HAVE TO ADDRESS LEFT

     

    Understanding the importantance of breach of fiduciary duty in a negligence case will help you understand whether the complaint will be succesful.

    Breach of duty is part of a negligence lawsuit and the most important aspect in proving such an issue. If no duty was ever breached then no negligent damages are owed.

    In a negligence lawsuit there are four elements to consider: duty, breach of duty, causation and damages. For breach of duty, it must be decided whether or not the defendant, the one being accused of negligence, behaved in a way that a reasonable person would have under similar circumstances. If no duty is owed then there is no negligence lawsuit.

    To determine breach of duty's existence, a determination is made as to the standard of care and an evaluation of the defendant's conduct in reflection of that determined standard. If duty of care by the defendant can be proven, using the reasonable care standard, then negligence can be an issue. The defendant needs to have recognized the risks created by her or his actions and to understand what could happen from those risks taken. The general standard of care is then applied to the specific circumstances of the situation and the jury must establish whether the defendant's conduct was negligent.

    When the courts decide if duty was owed they consider the objective or subjective standard. Objective standard considers the defendant's actions against a hypothetical reasonable person. With the subjective standard, the court considers whether the tortfeasor, the person who is allegedly negligent, believes her or his actions were reasonable. For example, if someone attempts to rob an elderly woman in a parking lot and she happens to have a gun and shoots her attacker, the objective standard would ask if a reasonable person would have acted the same way. In the subjective standard the courts would ask the elderly woman if she thought she was acting in a reasonable fashion.

    Professionals are held to a higher standard of care than an ordinary reasonable person would be. Police officers, for example, must behave as a reasonable officer would do so rather than a reasonable person. The perspective of an officer would be different than an ordinary person and that difference matters in the court.

    Occasionally, statutes, or laws, will decide the reasonable standard of care rather than the courts interpreting the behavior. When statutes determine the standard of care owed, violations would be called negligence per se.

    If a plaintiff, the person alleging negligence, is unable to prove the defendant's negligence because pertinent information is inaccessible, then the plaintiff can rely on res ipsa loquitur. What this means is that the act speaks for itself and needs no other information to determine negligence. But, in order to use this, the plaintiff must prove two things: the event which injured themselves only happens when negligence has occurred; the item or instrument which caused the injury was under exclusive control of the defendant and the plaintiff's injuries were not due to their own actions.

    The key factor to remember in considering negligence is whether the duty of care was ever owed to the plaintiff, by the defendant, and whether or not that duty was breached.

    This topic is deleted.
 
QCOR
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