Negligent Tort

Week 2 Assignment

Bus: 670

Legal Environment

Introduction

Although we hope for integrity in business matters this is not always possible. Most

organizations would like to protect their good name by making sound and ethical decisions in

business. Although not every business organization adheres to this truth of moral standard. We

will be examining the consequences of those who don’t. We will select an organization that had

an inferior product and examine the process that the organization went through in having their

product recalled and making this right after such an incidence.

The organization that will be examined is Triaminic Syrups and Theraflu warming Relief

Syrups. The child resistant caps failed to work properly. Because of the ingredients in these

products it is required by the Poison Prevention Packaging Act to properly have these

medications in child proof tamper resistant bottles. By these products containing acetaminophen

and diphenhydramine it is necessary to have child resistant packaging to prevent unintentional

ingestion and poisoning.

“Consumers are asked to contact: Novartis Consumer Healthcare toll-free at

(866) 553-6742 from 8 a.m. to midnight ET, Monday through Saturday, or online at:

www.novartisOTC.com for more information” (Dentel, 2013).Authorities are interested in

hearing from consumers who have experienced problems with these products. “This recall

involves Triaminic® Syrups and Theraflu Warming Relief® Syrups for coughs, colds and

fevers. There are 24 types of these two products included in the recall. A complete list of

products, lot numbers and National Drug Codes (NDC) can be found at www.novartisOTC.com.

Lot numbers are located on the bottom panel of the box and on the left side of the label on the

bottle. The NDC number is located on the upper right corner of the front panel of the Triaminic

Syrups box and the upper left corner of the Theraflu Warming Relief Syrups bottle”( Dentel,

2013 ).

Tort Law

One concern is if organizations use proper duty of care. Duty of care in Tort Law

basically is a legal obligation imposed on an individual that they provide reasonable care in a

situation that anyone else in the same situation would perform the same reasonable care.

Reasonable care negligence is when one does not utilize the proper due diligence and duty of

care in a situation that someone in the same situation would perform. Organizations and their

employees have to be cautious to use sound judgment in business matters.

Another concept to look at is the standard of care which goes hand in hand with the duty

of care. Standard of care is actually like the depth of prudence, caution, and sound judgment that

is required of one who is under the responsibility of duty of care. Negligence is basically an

individual failing to provide wise recourse in providing a standard of care and exhibiting

acceptable duty of care. These work together to compliment and ensure adequate care, thought,

and diligence is given in how one responds meticulous in there service. On the flip side the

standard of care in dealing with negligence is more related to one’s conduct rather than one’s

state of mind.

In comparison, in order not to breach a duty of care one must be careful to meet the

standard of a reasonable person in that same situation. In being able to establish a breach of duty

one must be proven individually or as a company failed to live up to standard in their duty of

care, towards someone / something that they are responsible for. The key is to pay attention to

the way you render service to others individually and professionally and to always use the

reasonable person rule that you are responding in good conscious as a reasonable person would

in the same given situation.

Consumer Protection Statute

Actual causation is when several careless acts by themselves would cause injury. Each

act is identified as an actual cause. Proximate cause is an act from which an injury is caused. A

proximate cause is a response that causes this immediate result for causing injury. The actual

injury is the compensation for actual damages that are determined and given as compensation for

injury.

One thought for a defendant in any type of negligence suit most likely attempts to

discredit the validity of one of the elements of the plaintiff’s cause of action. The key to

protecting oneself personally or professionally in business is once again the reasonable man if

one takes the proper care and course of action that a reasonable person in that same situation

would do. This may somewhat seem redundant but it is the message for one to give due diligence

to how they perform and how they make sound decisions and give adequate care and reasonable

service. It is not worth having your name discredited or being charged with negligence.

One way that I would try to defend myself against negligence is to cause reasonable

doubt and to discredit their defense against. It is your responsibility to anticipate you opponent’s

tactics and to counterattack them. It is best to show due diligence to not go there but if need be

there are three things on can try to counter attempts to defend against a negligence suit. These

tactics would be assumption of risk, superseding cause, and contributory and comparative

negligence.

The assumption of risk as a defense one is basically saying they are not liable for the

plaintiff’s injuries. In comparison, superseding cause may relieve from responsibility from the

party whose actions started the series of events which led up to the accident, by directing the

attention to one who was determined to actually be responsible for it all. Also two other concepts

to examine are comparative negligence when the injured person still is able to recover some

damages even if they were partially to blame. And Contributory negligence is when the injured

person may only receive compensation if they did not have any part in contributing to the

accident in any way.

In reviewing the Triaminic Syrups and Theraflu warming Relief Syrups failure to provide

the child resistant caps to work properly. At this time the extent of damages are the injured

individuals having to obtain medical assistance who needed medical care and no deaths have

been reported. This company has been around for a while and it was not the actual product that

was harmful but the packaging it come in to provide child resistant protect. “The reasonable

person’s standard is an objective one; it requires each person in society to act in keeping with the

standard of care that a reasonably prudent person would apply under the same circumstances.

The reasonable person standard uses as its model a fictional member of society that represents a

citizen of average intelligence, average common sense, and average skills” (Seaquist& Coulter,

2012).

Conclusion

In conclusion, the organization being examined is Triaminic Syrups and Theraflu

warming Relief Syrups. Their child resistant caps failed to work properly. Because of the

ingredients in these products it is required by the Poison Prevention Packaging Act to properly

have these medications in child proof tamper resistant bottles. Both of these products containing

acetaminophen and diphenhydramine it is necessary to have child resistant packaging to prevent

unintentional ingestion and poisoning. The failure was in proper packaging the medications. We

see the key to success is the reasonable person’s standard which uses as its model a fic tional

member of society that represents a citizen of average intelligence, average common sense, and

average skills. This model helps things to be refocused and to lessen the effects of negligence

and to extend proper care in doing what has to be done.

References:

Seaquist, G., & Coulter, K. (2012) Business law for managers.San Diego, CA:

Bridgepoint Education, Inc. Retrieved 7/11/13

Inspector General: Christopher W. Dentel (January 31, 2013).United States Consumer

Protection Commission.http://www.cpsc.gov/en/Recalls/2013/Triaminic-and-

Theraflu-Products-Recalled/#Remedy . Retrieved 7/11/13