FREE ONLINE BOOKS IN THE FIELD OF PI
http://www.pimall.com/nais/nais.j.html
FREE ONLINE BOOKS NAIS maintains a massive library of free downloadable and online books and training aids you will find quote useful that numbers in the thousands. Many of these investigative manuals and internet aids are downloadable PDF files and some have web based access.
NAIStv
Although NAIStv -the online broadcasting channel of NAIS has it's own separate web site off of www.naistv.com, you can access all of it directly through PEN. NAIStv will soon been an NAIS members only broadcasting network.
VIDEO TRAINING
You will find training videos you can watch inside PEN.
http://www.pimall.com/thomas/rdt.html
FREE COURSE ON PRIVATE INVESTIGATION
http://www.pimall.com/nais/sc.html
NATIONAL ASSOCIATION OF INVESTIGATIVE SPECIALIST
http://www.pimall.com/nais/dir.menu.html
NATIONAL ASSOCIATION OF
INVESTIGATIVE SPECIALISTS
P O Box 82148, Austin, Texas 78708
Phone 512-719-3595 Fax 512-719-3594
INVESTIGATIVE RESOURCE CENTERS
http://www.pimall.com/nais/dir.menu.html
FREE ARTICLES
OVERVIEW OF NEGLIGENCE
FOR THE LEGAL INVESTIGATOR
By Ralph D. Thomas
Negligence is the largest area of tort litigation found today. The basic concept in negligence is that the defendant acted with less care than is expected from a reasonable person. This reasonable person is an imaginary person used as a model in the negligence concept. Neg gence does not assume that the defendant's action that caused this liability imposed upon him was some thing he did on purpose. How ever, this general legal principle implies that the defendant failed to act or provide due care. Negligence then, is the unintentional failure of a defendant to act as a reasonable man would causing harm to the plaintiff.
There is not another area within the legal/investigative science that needs to be understood more than in the area of negligence. The legal investigator needs a basic understanding of this legal principle to investigate such a case. The volume of case assignments is high, more so than in any other area. This chapter will deal with those concepts most needed when it comes to the investigation of a negligence case.
UNDERSTANDING TORT LAW: A tort is a civil wrong resulting from a violation of a legal right not created by contract for which monetary redress is provided. This may be (a) an act or (b) an omission. More formally, a tort may be defined as a wrongful act or omission arising in the course of social re ships other than contracts which violates a person's legally protected rights for which the law provides a remedy in the form of an action for damages.
There are two basic classifications of torts: (a) negligence which is the result of an unintentional act (b) intentional acts or omissions which results in a breach of someone's rights. There is a third group in this area that should be explained. It is referred to as strict liability.
UNDERSTANDING DIFFERENT DIVISIONS AND REALATING TOPICS: This description and any description of various legal principles as they relate to legal investigation found in this manual covers various points in general terms. Some states will apply one principle and another state another. It is up to the investigator to learn and understand which principles apply.
UNDERSTANDING NEGLIGENCE: Negligence is the failure to exercise that degree of which the law requires to protect others from unreasonable risk or harm. It will measure a person's act or omission against that of "a reasonably prudent man". This measurement is against an unreal person who is used as a standard of conduct. It denotes the failure to act as a reasonably prudent man would have acted under similar circum stances.
DEGREE OF CARE: All that needs to be proven is that the defendant did not act as a reasonable prudent person would under like circum stances. The law of our land has imposed certain degrees of care that become issues under certain conditions. Some of these circumstances can come out in the actual investigation of the facts.
ABSOLUTE LIABILITY: Under some conditions, no neg gence need be shown because the defendant was involved in activity that imposes strict or absolute liability upon him. Under conditions which are dangerous in nature strict liability is generally imposed. To apply strict liability, one needs to consider the activity the defendant is involved in. The strict liability principle can be compared to the accidental shooting in an armed robbery. Under such a condition, the criminal can be charged with murder and the mere fact that the shooting was an accident is immaterial. Under certain conditions, you can see absolute liability can be imposed even in the absence of neg gence.
In most cases, anyone who possesses, stores, maintains, or transports a dangerous instrumentality is absolutely or strictly liable for any injury or damage caused by the instrumentality, regardless of the presence or absence of due care.
CONTRIBUTORY OR COMPARATIVE NEGLIGENCE: see above
LAST CLEAR CHANCE: In this principle you might show that the plaintiff had the last clear chance to avoid the accident. In such a case, the defendant's liability could be diminished or omitted all together.
ASSUMPTION OF RISK: Under certain conditions it could be held that the plaintiff assumed the risk involved. In such a case, there would be no liability. What this principle means is that, in advance, the plaintiff gave his consent to assume certain risks. What this really does is transfer certain duties from the defendant to the plaintiff. In other words, the plaintiff is then responsible for himself. A good example of this would be owners of certain sinkholes in Florida used by scuba divers. The divers are almost always required to sign a statement that they are assuming all risks before they dive. However, the as tion of risks does not have to be in writing and can be implied.
PROXIMATE CAUSE: This has to do with the relationship between the failed duty of the defendant and the damage suffered by the plaintiff. There are thousands of cases each year where the plaintiff claims damages that were not the result of the actions or accident. In such a case, the defendant needs to show that certain of the plaintiff's damages were not the proximate cause of the accident.
STATUTE OF LIMITATIONS: This has to do with the time limitation imposed upon the plaintiff to seek damages from the defendant. It often can become an issue in any negligence case. Dates and times are important. You will want to know the time limitations in your area.
UNDERSTANDING THE LAST CLEAR CHANCE DOCTRINE
The law imposes a duty of "last clear chance" or requires each and every party to use due care for the safety of themselves and others. This is related to comparative and contributory neg gence. Under this doctrine, any party will have a legal duty to avoid an accident and failure to do so will create a liability. Such a doctrine is set up to avoid a situation where (for example) a person saw the opportunity for an accident to take place and he or she let it happen so damages could be collected.
UNDERSTANDING THE DOCTRINE OF RES IPSA LO QUTUR
Negligence can be proven with circumstantial evidence and one type is res ipsa loquitur. This is a latin term which means, "the thing (act) speaks for itself. There must be four elements present to prove or show negligence with this doctrine. They are:
UNDERSTANDING DAMAGES
Damages have to have resulted in order for the plaintiff to collect anything from the defendant. In relationship to legal principles, there are two types of damages:
UNDERSTANDING SUBROGATION
As stated a person can be held liable for his or her acts or omissions and be charged with negligence. If the injured party chooses to recover from his own insurance company in part or in whole, then the insurance company in effect purchases the right to seek damages from the defendant. This is commonly referred to as subrogation. From an investigator's point of view, the insurance company will often times order an assets investigation before seeking legal action to determine if the third party has any attachable assets for subrogation.
Since negligence depends upon certain degrees of care imposed upon the tortfeasor, the degree of care required can and often does depend upon the relationship between the two parties involved. In other words, different yardsticks of measurement can be used against the tortfeasor depending upon the re ship between the two parties. Facts concerning the relationship between parties involved need to be established to determine the "yardstick of measurement". Such facts will establish the relationship into one of three classifications.
(A. invitee B. licensee C. trespasser).
INVITEE: An invitee is either a public invitee or a business visitor. A public invitee is one whom enters upon the defendant's land being a member of the general population. He enters upon the defendant's land as the land is opened to the general public. A business visitor is one who enters upon the land for some kind of direct or indirect business dealing with the owner. An invitee is given the greatest degree of protection by the courts as far an negligence is concerned. Moreover, a business visitor is given the greatest degree of protection within the invitee concept. In other words, the degree of care might be different when a person is given a ride in a vehicle if he compensated the owner for the ride than if he was given a ride for free. Such hair-line cases come up daily in the field of negligence.
LICENSEE: A licensee is a person whom enters upon property with an implied or express consent. An example of a licensee would be a social quest. Under most circumstances a licensee is expected to accept the property as he finds it and to look out for his own welfare. Under such circumstances, the knowledge of any danger known by the licensee will preclude the licensee from any type of recovery. However, the owner will be required to inform and give warning to the licensee of any danger. Thus, the defendant would have a legal duty to inform the licensee of any dangers.
TRESPASSER: A trespasser is one who enters upon property without the implied or express consent of the owner. The owner or possessor of the land can not be held liable for any harm done by a trespasser and owes no duty to act as the reasonably prudent man would.
PROOF OF NEGLIGENCE
The burden of proof of negligence is on the plaintiff. In order for the plaintiff to obtain any type of recovery from the de dant, he must establish and prove four basic issues. They are:
KINDS OF NEGLIGENCE
GROSS NEGLIGENCE: Gross negligence is a term often used in civil litigation today. It refers to the intentional failure to perform the duty expected by a reasonable man.
CONTRIBUTORY NEGLIGENCE: This principle has to do with the plaintiff being negligent to some degree also. In those states where contributory negligence is in effect, such a situ ation would rule or bar the plaintiff from any action brought against the defendant. In effect, this is an all or nothing theory.
COMPARATIVE NEGLIGENCE: This principle will meas ure the degree of negligence of both the plaintiff and defendant. A percentage is assigned. In such a case, the defendant would only then be held responsible for that percentage. In other words, if party A, the plaintiff, was found to contribute 20% negligence to the act, and the defendant 80% to the act, the defendant would only have to pay 80% of the total damages. In effect, this principle eliminates the all or nothing theory.
FREE ARTICLES YOU CAN READ
BY RALPH THOMAS
A MEGASHIFT IN PRIVATE INVESTIGATIVE THINKING
25 LITTLE KNOWN TELEPHONE TIPS!
CONDUCTING COMPUTER COUNTERMEASURES
12 MAJOR TRENDS AND TRAINING IN PRIVATE INVESTIGATION!
COVERTLY RECORDING TELEPHONE CONVERSATIONS (AN UPDATE)
BUDDY BOMBET: 2002 NAIS LIFETIME ACHIEVEMENT AWARD
TRACKING AND TRACING PEOPLE IN NEWGROUPS
AN INVESTIGATIVE GOLDMINE!
16 TIPS FOR FINDING HIDDEN INFORMATION ON PEOPLE ON THE NET
UNCOVERING THE ELVIS IS ALIVE HOAX
JOHN LAJOIE: 2002 NAIS INVESTIGATOR OF THE YEAR
UNDERSTANDING MICROCHIP VIDEO CAMERA TECHNOLOGY
JIMMIE MESIS: 2002 NAIS SPEAKER OF THE YEAR
CAN BIN LADEN ATTACK THE UNITED STATES
WITH NUCLEAR WEAPONS?
PRIMER ON GPS SURVEILLANCE TRACKING TECHNOLOGY
TOP 20 INVESTIGATIVE SPECIALIZATIONS
HIGH TECH COMMUNICATIONS FOR PRIVATE INVESTIGATORS
EVIDENCE OR FAKERY: BACKYARD PHOTOS OF LEE OSWALD
INVESTIGATIVE CYBERSEX CHEATS
SHINNING STAR IN OUR PROFESSION
PI MAGAZINE RELEASES 1OTH YEAR ANNIVERSARY ISSUE
SONY'S DIGITAL MAVICA CAMERA REVIEW
PROFILE ON ALLAN PINKERTON
THE FATHER OF THE AMERICAN PRIVATE INVESTIGATOR
INDUSTRY ICON HAL LIPSET PASSES AWAY
DISCOVERED HISTORICAL DOCUMENTS REVEAL THE FIRST OFFICIAL MISSING PERSONS INVESTIGATOR, CLARA BARTON
By Barbara Maikell-Thomas (Ralph's Wife)
HIGH THREAT SITUTATIONS FOR BUGGING
http://www.pimall.com/nais/n.thrbug.html
TWELVE RED FLAGS THAT INDICATE EAVESDROPPING
http://www.pimall.com/nais/n.redeaves.html
EIGHT WAYS TO GET MORE INVESTIGATIVE BUSINESS
http://pimall.com/nais/n.getbiz.html
STATEMENT ANALYSIS:
TECHNIQUES TO HELP YOU UNCOVER THE TRUTH
http://www.pimall.com/nais/n.intera.html
SIX WAYS AN EAVESDROPER WILL FOOL A COUNTERMEASURES SWEEP
http://www.pimall.com/nais/n.counterf.html
NAIS INVESTIGATOR OF THE YEAR 97: KELLY RIDDLE
http://www.pimall.com/nais/n.riddle.html
NAIS AUTHOR/SPEAKER OF THE YEAR: JODY BALL
http://www.pimall.com/nais/n.ball.html
TRENDS IN LOCATING MISSING PERSONS SPECIALIZATIONS
http://www.pimall.com/nais/n.missing3.html
NAIS LIFETIME ACHIEVEMENT AWARD 1997: WILLIAM C. DEAR
http://www.pimall.com/nais/n.dear.html
TREND WATCHING IN THE PRIVATE INVESTIGATIVE PROFESSION
What It Is-How To Do It To Grow Your Agency
And Ten Major Trends You Should Be Watching
http://www.pimall.com/nais/n.trendw.html
WHAT YOU CAN DO TO HELP OUR K-9 FRIENDS
http://www.pimall.com/nais/n.k9.html
DEATH CLAIMS DISAPPEARANCE INVESTIGATION
http://www.pimall.com/nais/disap.html
NEGLIGENCE FOR THE LEGAL INVESTIGATOR
http://www.pimall.com/nais/n.negl.html
COURTHOUSE RECORDS CHECKING
http://www.pimall.com/nais/n.courtr.html
INVESTIGATION OF INSURANCE DEATH CLAIMS
By Ralph Thomas
http://www.pimall.com/nais/n.dcrdt.html
WATCH TV AND LISTEN TO MUSIC RIGHT FROM YOUR
WEB BROWSER WITH NEW PLUG-IN
Amazing review of new Real Video Plug-In
Edited And Partially written By Ralph Thomas
http://www.pimall.com/nais/n.livev.html
SEVEN FATAL ERRORS ON WEB SITES
Seven Errors You Must Avoid
By Ralph Thomas
http://www.pimall.com/nais/n.w-eror.html
PRODUCT REVIEW
OSCOR: THE OMNI SPECTRAL CORRELATOR
The Hal Computer Of Countermeasures Is Out
Compiled By Ralph Thomas
http://www.pimall.com/nais/e.omni.html
DEFINING COUNTERMEASURES THREAT LEVEL AND ANALYSIS
New Opportunities Exist In Information Security But Require Higher Level
Of Knowledge, Equipment Investment And Selection And Know-How
By Ralph D. Thomas
http://www.pimall.com/nais/n.c-lev.html
LEGAL ISSUES IN TAKING TAPE RECORDED WITNESS STATEMENTS
By Ralph Thomas
http://www.pimall.com/nais/n.rstat.html
THE COUNTERMEASURES BUSINESS
By Ralph D. Thomas
http://www.pimall.com/nais/n.counter.html
GPS AND SATELLITE TECHNOLOGY FOR
COMMERCIAL APPLICATIONS IN OUT!
By Ralph Thomas
http://www.pimall.com/nais/n.gps.html
THE WORLD UNDER SURVEILLANCE ON THE WEB WITH LIVE CAMS
You'll like this! By Ralph Thomas
http://www.pimall.com/nais/n.livcam.html
A PROFILE ON NICK AND PATRICIA BELTRANTE
The dean of private investigation in one of the most important cities in the world.
http://www.pimall.com/nais/n.nick.html
WORLD'S BEST WEB AUTHORING SOFTWARE, PAGEMILL 2.0
OUT FOR WINDOWS IN BETA FORM FOR FREE
http://www.pimall.com/nais/n.pm.html
THE AUTO REPOSSESSION BUSINESS
http://www.pimall.com/nais/n.repo.html
SKIP TRACING TRICKS FOR THE REPO MAN
BAIL ENFORCEMENT AGENT AND OTHERS
By Ralph Thomas
http://www.pimall.com/nais/n.skipt.html
ALTERNATIVE WEB ACCESS VIA TV AND TELEPHONE
Internet Access For The Masses Without Computers
By Ralph D. Thomas
http://www.pimall.com/nais/n.ephone.html
THE BAIL BOND RECOVERY BUSINESS
By Ralph D. Thomas
http://www.pimall.com/nais/b.bailrec.html
HOW TO MAKE $200.00 PER HOUR WITH YOUR VIDEO CAMERA
Sideline Businesses With Mainstream Profit Series
By Ralph D. Thomas
http://www.pimall.com/nais/n.cprof.html
USEFUL PLACES ON AMERICA ONLINE AND COMPUSERVEYou'll love these finds if you use these services.
BOB BROWN: AN INVESTIGATOR OF FAITH
Profile On Orlando, Florida Based Private Investigator Bob Brown
Done By Ralph Thomas. This article orginally appeared in The Private Investigator's
Connection And PI Magazine.
ENTRAPMENT ISSUES
Is it OK to set up a surveillant in an investigation to save the client money?
The Answer Is No-It's NOT! Some surpising answers and DANGERS! By Ralph Thomas
THE ROAD AHEAD-The future of private investigation and info technology.
BEING A MEGA-SUCCESS! What it takes and how to do it!
YELLOW PAGE ADS FOR THE PRIVATE INVESTIGATOR
TO BE OR NOT TO BE--THAT IS THE QUESTION- HERE ARE SOME ANSWERS!
Compiled And Edited By Ralph Thomas
HOW TO DEVELOP YOUR INVESTIGATIVE EXPERTISE Top specializations and tools to develop and establish your expertise.
THE TOP TEN BEST COMPUTER SEARCHES FOR LOCATING MISSING PERSONS
Learn What The Top Sources Are, How To Use Them Correctly And Analyze What You Get Effectively For Successful Skip Tracing.
NEW INVESTIGATIVE TREND EMERGING!
Cyber Investigations: The Cutting Edge
FREE ONLINE FILTERS TO USE ON LOCATING MISSING PERSONS
BY COMPUTERS Free searches you can use before you send money down
SATELLITE SURVEILLANCE TECHNOLOGY
"The Way We Conduct Surveillance Is About To Change," Ralph D. Thomas
ADDING ANIMATION TO YOUR WEB PAGES
The GIF 89a and sample with and without.
COMPUTER REENACTMENT
A NEW FORM OF INVESTIGATION USING VIRTUAL REALITY
COMPUTER TECHNOLOGY
Compiled And Edited By Ralph D. Thomas
STATE BY STATE LIST OF RECORDING TELEPHONE CONVERSATION LAWS
Compiled By Ralph Thomas from e mail responses from private investigators
DIGITAL SURVEILLANCE CAMERAS
With a covert digital selection of photos of Ralph Thomas as he wrote this article
TOOLS AND TIPS FOR BUILDING YOUR WEB PAGE
Tips, Techniques And Software Recommendations
HOW TO DEVELOP YOUR INVESTIGATIVE EXPERTISE
Top specializations and tools to develop and establish your expertise.
CYBER INVESTIGATIONS: A NEW INDUSTRY TREND
Internet tracking And Digital evidence Discovery/recovery
A LOOK INSIDE A MODERN HIGH TECH SURVEILLANCE VAN
All the equipment for those will a CIA type budget. Revealing photos.
RALPH THOMAS LIST OF FREE GRAPHICS AND MARKETING
TOOLS FOR WEB PAGES
Spending weeks and weeks searching the web, Thomas has developed powerful resources for your web pages. Here you will find free graphics you can use and free places to link and list your web site.
FREE ONLINE BOOKS NAIS maintains a massive library of free downloadable and online books and training aids you will find quote useful that numbers in the thousands. Many of these investigative manuals and internet aids are downloadable PDF files and some have web based access.
NAIStv
Although NAIStv -the online broadcasting channel of NAIS has it's own separate web site off of www.naistv.com, you can access all of it directly through PEN. NAIStv will soon been an NAIS members only broadcasting network.
VIDEO TRAINING
You will find training videos you can watch inside PEN.
http://www.pimall.com/thomas/rdt.html
FREE COURSE ON PRIVATE INVESTIGATION
http://www.pimall.com/nais/sc.html
NATIONAL ASSOCIATION OF INVESTIGATIVE SPECIALIST
http://www.pimall.com/nais/dir.menu.html
NATIONAL ASSOCIATION OF
INVESTIGATIVE SPECIALISTS
P O Box 82148, Austin, Texas 78708
Phone 512-719-3595 Fax 512-719-3594
INVESTIGATIVE RESOURCE CENTERS
http://www.pimall.com/nais/dir.menu.html
FREE ARTICLES
OVERVIEW OF NEGLIGENCE
FOR THE LEGAL INVESTIGATOR
By Ralph D. Thomas
Negligence is the largest area of tort litigation found today. The basic concept in negligence is that the defendant acted with less care than is expected from a reasonable person. This reasonable person is an imaginary person used as a model in the negligence concept. Neg gence does not assume that the defendant's action that caused this liability imposed upon him was some thing he did on purpose. How ever, this general legal principle implies that the defendant failed to act or provide due care. Negligence then, is the unintentional failure of a defendant to act as a reasonable man would causing harm to the plaintiff.
There is not another area within the legal/investigative science that needs to be understood more than in the area of negligence. The legal investigator needs a basic understanding of this legal principle to investigate such a case. The volume of case assignments is high, more so than in any other area. This chapter will deal with those concepts most needed when it comes to the investigation of a negligence case.
UNDERSTANDING TORT LAW: A tort is a civil wrong resulting from a violation of a legal right not created by contract for which monetary redress is provided. This may be (a) an act or (b) an omission. More formally, a tort may be defined as a wrongful act or omission arising in the course of social re ships other than contracts which violates a person's legally protected rights for which the law provides a remedy in the form of an action for damages.
There are two basic classifications of torts: (a) negligence which is the result of an unintentional act (b) intentional acts or omissions which results in a breach of someone's rights. There is a third group in this area that should be explained. It is referred to as strict liability.
UNDERSTANDING DIFFERENT DIVISIONS AND REALATING TOPICS: This description and any description of various legal principles as they relate to legal investigation found in this manual covers various points in general terms. Some states will apply one principle and another state another. It is up to the investigator to learn and understand which principles apply.
UNDERSTANDING NEGLIGENCE: Negligence is the failure to exercise that degree of which the law requires to protect others from unreasonable risk or harm. It will measure a person's act or omission against that of "a reasonably prudent man". This measurement is against an unreal person who is used as a standard of conduct. It denotes the failure to act as a reasonably prudent man would have acted under similar circum stances.
DEGREE OF CARE: All that needs to be proven is that the defendant did not act as a reasonable prudent person would under like circum stances. The law of our land has imposed certain degrees of care that become issues under certain conditions. Some of these circumstances can come out in the actual investigation of the facts.
ABSOLUTE LIABILITY: Under some conditions, no neg gence need be shown because the defendant was involved in activity that imposes strict or absolute liability upon him. Under conditions which are dangerous in nature strict liability is generally imposed. To apply strict liability, one needs to consider the activity the defendant is involved in. The strict liability principle can be compared to the accidental shooting in an armed robbery. Under such a condition, the criminal can be charged with murder and the mere fact that the shooting was an accident is immaterial. Under certain conditions, you can see absolute liability can be imposed even in the absence of neg gence.
In most cases, anyone who possesses, stores, maintains, or transports a dangerous instrumentality is absolutely or strictly liable for any injury or damage caused by the instrumentality, regardless of the presence or absence of due care.
CONTRIBUTORY OR COMPARATIVE NEGLIGENCE: see above
LAST CLEAR CHANCE: In this principle you might show that the plaintiff had the last clear chance to avoid the accident. In such a case, the defendant's liability could be diminished or omitted all together.
ASSUMPTION OF RISK: Under certain conditions it could be held that the plaintiff assumed the risk involved. In such a case, there would be no liability. What this principle means is that, in advance, the plaintiff gave his consent to assume certain risks. What this really does is transfer certain duties from the defendant to the plaintiff. In other words, the plaintiff is then responsible for himself. A good example of this would be owners of certain sinkholes in Florida used by scuba divers. The divers are almost always required to sign a statement that they are assuming all risks before they dive. However, the as tion of risks does not have to be in writing and can be implied.
PROXIMATE CAUSE: This has to do with the relationship between the failed duty of the defendant and the damage suffered by the plaintiff. There are thousands of cases each year where the plaintiff claims damages that were not the result of the actions or accident. In such a case, the defendant needs to show that certain of the plaintiff's damages were not the proximate cause of the accident.
STATUTE OF LIMITATIONS: This has to do with the time limitation imposed upon the plaintiff to seek damages from the defendant. It often can become an issue in any negligence case. Dates and times are important. You will want to know the time limitations in your area.
UNDERSTANDING THE LAST CLEAR CHANCE DOCTRINE
The law imposes a duty of "last clear chance" or requires each and every party to use due care for the safety of themselves and others. This is related to comparative and contributory neg gence. Under this doctrine, any party will have a legal duty to avoid an accident and failure to do so will create a liability. Such a doctrine is set up to avoid a situation where (for example) a person saw the opportunity for an accident to take place and he or she let it happen so damages could be collected.
UNDERSTANDING THE DOCTRINE OF RES IPSA LO QUTUR
Negligence can be proven with circumstantial evidence and one type is res ipsa loquitur. This is a latin term which means, "the thing (act) speaks for itself. There must be four elements present to prove or show negligence with this doctrine. They are:
a) The accident could not have ordinarily occurred without someone being negligent.
b) The accident is caused by an instrumentality within the exclusive control of the defendant.
c) The injured party (plaintiff) did not contribute to the negligence.d) The evidence as to the explanation of the accident is more available to the defendant than to the plaintiff.
UNDERSTANDING DAMAGES
Damages have to have resulted in order for the plaintiff to collect anything from the defendant. In relationship to legal principles, there are two types of damages:
(a) SPECIAL DAMAGES: These damages are direct dam ages. For example, in an auto accident they might be: damaged clothing, hospital bills, doctor's office bills, bills for drugs, repair of auto, rental of another vehicle, etc.
(b) PUNITIVE DAMAGES: These damages are not direct but have more to do with pain and suffering. Harder to measure, they can often times be higher than special damages.Punitive damages are more of a punishment of the defendant.
UNDERSTANDING SUBROGATION
As stated a person can be held liable for his or her acts or omissions and be charged with negligence. If the injured party chooses to recover from his own insurance company in part or in whole, then the insurance company in effect purchases the right to seek damages from the defendant. This is commonly referred to as subrogation. From an investigator's point of view, the insurance company will often times order an assets investigation before seeking legal action to determine if the third party has any attachable assets for subrogation.
Since negligence depends upon certain degrees of care imposed upon the tortfeasor, the degree of care required can and often does depend upon the relationship between the two parties involved. In other words, different yardsticks of measurement can be used against the tortfeasor depending upon the re ship between the two parties. Facts concerning the relationship between parties involved need to be established to determine the "yardstick of measurement". Such facts will establish the relationship into one of three classifications.
(A. invitee B. licensee C. trespasser).
INVITEE: An invitee is either a public invitee or a business visitor. A public invitee is one whom enters upon the defendant's land being a member of the general population. He enters upon the defendant's land as the land is opened to the general public. A business visitor is one who enters upon the land for some kind of direct or indirect business dealing with the owner. An invitee is given the greatest degree of protection by the courts as far an negligence is concerned. Moreover, a business visitor is given the greatest degree of protection within the invitee concept. In other words, the degree of care might be different when a person is given a ride in a vehicle if he compensated the owner for the ride than if he was given a ride for free. Such hair-line cases come up daily in the field of negligence.
LICENSEE: A licensee is a person whom enters upon property with an implied or express consent. An example of a licensee would be a social quest. Under most circumstances a licensee is expected to accept the property as he finds it and to look out for his own welfare. Under such circumstances, the knowledge of any danger known by the licensee will preclude the licensee from any type of recovery. However, the owner will be required to inform and give warning to the licensee of any danger. Thus, the defendant would have a legal duty to inform the licensee of any dangers.
TRESPASSER: A trespasser is one who enters upon property without the implied or express consent of the owner. The owner or possessor of the land can not be held liable for any harm done by a trespasser and owes no duty to act as the reasonably prudent man would.
PROOF OF NEGLIGENCE
The burden of proof of negligence is on the plaintiff. In order for the plaintiff to obtain any type of recovery from the de dant, he must establish and prove four basic issues. They are:
1) A legal duty exists to conform to a reasonable standard of conduct. In other words, there was a legal duty to act or not to act on the part or the defendant.
2) The defendant failed to perform the standard of conduct, and there was a breach of the legal duty.
3) The defendant's failure to act in the standard resulted in an injury to the plaintiff. This is often referred to as proximate cause.
4) Actual damages resulted from the incident.
KINDS OF NEGLIGENCE
GROSS NEGLIGENCE: Gross negligence is a term often used in civil litigation today. It refers to the intentional failure to perform the duty expected by a reasonable man.
CONTRIBUTORY NEGLIGENCE: This principle has to do with the plaintiff being negligent to some degree also. In those states where contributory negligence is in effect, such a situ ation would rule or bar the plaintiff from any action brought against the defendant. In effect, this is an all or nothing theory.
COMPARATIVE NEGLIGENCE: This principle will meas ure the degree of negligence of both the plaintiff and defendant. A percentage is assigned. In such a case, the defendant would only then be held responsible for that percentage. In other words, if party A, the plaintiff, was found to contribute 20% negligence to the act, and the defendant 80% to the act, the defendant would only have to pay 80% of the total damages. In effect, this principle eliminates the all or nothing theory.
BY RALPH THOMAS
CONDUCTING COMPUTER COUNTERMEASURES
AN INVESTIGATIVE GOLDMINE!
WITH NUCLEAR WEAPONS?
SHINNING STAR IN OUR PROFESSION
INDUSTRY ICON HAL LIPSET PASSES AWAY
DISCOVERED HISTORICAL DOCUMENTS REVEAL THE FIRST OFFICIAL MISSING PERSONS INVESTIGATOR, CLARA BARTON
HIGH THREAT SITUTATIONS FOR BUGGING
http://www.pimall.com/nais/n.thrbug.html
TWELVE RED FLAGS THAT INDICATE EAVESDROPPING
http://www.pimall.com/nais/n.redeaves.html
EIGHT WAYS TO GET MORE INVESTIGATIVE BUSINESS
http://pimall.com/nais/n.getbiz.html
STATEMENT ANALYSIS:
TECHNIQUES TO HELP YOU UNCOVER THE TRUTH
http://www.pimall.com/nais/n.intera.html
SIX WAYS AN EAVESDROPER WILL FOOL A COUNTERMEASURES SWEEP
http://www.pimall.com/nais/n.counterf.html
NAIS INVESTIGATOR OF THE YEAR 97: KELLY RIDDLE
http://www.pimall.com/nais/n.riddle.html
NAIS AUTHOR/SPEAKER OF THE YEAR: JODY BALL
http://www.pimall.com/nais/n.ball.html
TRENDS IN LOCATING MISSING PERSONS SPECIALIZATIONS
http://www.pimall.com/nais/n.missing3.html
NAIS LIFETIME ACHIEVEMENT AWARD 1997: WILLIAM C. DEAR
http://www.pimall.com/nais/n.dear.html
WHAT YOU CAN DO TO HELP OUR K-9 FRIENDS
http://www.pimall.com/nais/n.k9.html
http://www.pimall.com/nais/disap.html
http://www.pimall.com/nais/n.negl.html
http://www.pimall.com/nais/n.courtr.html
http://www.pimall.com/nais/n.dcrdt.html
WATCH TV AND LISTEN TO MUSIC RIGHT FROM YOUR
http://www.pimall.com/nais/n.livev.html
http://www.pimall.com/nais/n.w-eror.html
http://www.pimall.com/nais/e.omni.html
DEFINING COUNTERMEASURES THREAT LEVEL AND ANALYSIS
http://www.pimall.com/nais/n.c-lev.html
http://www.pimall.com/nais/n.rstat.html
By Ralph D. Thomas
http://www.pimall.com/nais/n.counter.html
COMMERCIAL APPLICATIONS IN OUT!
By Ralph Thomas
You'll like this! By Ralph Thomas
The dean of private investigation in one of the most important cities in the world.
OUT FOR WINDOWS IN BETA FORM FOR FREE
http://www.pimall.com/nais/n.repo.html
BAIL ENFORCEMENT AGENT AND OTHERS
By Ralph Thomas
Internet Access For The Masses Without Computers
By Ralph D. Thomas
By Ralph D. Thomas
posted by Dr. Shaw, D.B.A,M.B.A @ 9:05 AM
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