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Negligence comes from Latin word negligentia, from negligere which means failure to use reasonable mind. That is, doing something which an intelligent person would not have done under similar situation. It is an officially authorized idea in the common law legal systems generally used to achieve reimbursement for injuries. It is commonly referred to as carelessness because it leads to tortures. (Lord Blackburn)
Strict liability is a legitimate policy that ensures that a person takes responsibility for the harm and loss that has been caused by his or her own acts regardless of his/her negligence. For example, applying in product liability, it means that the manufacturers will be held responsible for injuries caused by the products even though they took precautions to prevent consumers' injuries or losses (Burke & Snoe, 2008).
Strict liability actions and negligence actions go together when it comes to their basics. In a negligence action is determined by basic elements and the elements are duty of care, break of duty by the tortfeasor, causation of injury to the victim and damages to the victim. These elements work together to establish the level of negligence of the causer. The element of duty of care is the lawful obligation to obey the rules to a certain standard of behavior in order to defend others from irrational danger. Violating of duty by the tortfeasor which is the second element is failure to obey the rules of certain standard of behavior. The third element could be the causation of injury and determining informal correlation between the behavior and the damage, which comes in two mechanism, real cause or contiguous cause. The last element of a negligence action is that of damages to the victim are now the real injuries. These injuries may occur as punitive injuries, compensatory injuries, or injuries related to real loss of tangible property (Information Access Corporation, 1981).
In strict liability act tortfeasor responsible for his or her behavior regardless of the fault that caused it. It has five elements particularly as experienced in products liability whereby an individual has been injured in the utilization of a product while the manufacturer could have detached the product or recognized the imperfection before it causes damage. One of them is the damage caused by a defective product. The second part of strict liability act is the kind of the defective product that caused the harm. The petitioner must show that the product was faulty when it leaves the hands of the seller is the third element. The fourth element is the significant cause of the fault and the fifth are the damage caused which might be physical injuries, economic thrash or property damage allege. If all these five elements are experienced, then a person is claimed responsible for this (Harvard Law School Library, 1961).
There are defenses which may apply under strict liability allege. One of the defense claims that the defect was not the actual cause of the damage, the other one, is that the article is to be processed. There is also abnormal use when the use is of it cannot be seen before the actual utilization. We have the intentional and irrational supposition of risk as another defense. Strict liability can claim the defenses of known or avoidable dangers and give adequate warning. The last example of strict liability defenses are when the dangers are not foreseen which means there is no room for giving a warning. For an example;
There is a need to investigate first when there is a product failure in order to avoid complications that may be encountered which mostly results to personal injury claims. Evidence is vital in the process of investigation and needs to be carefully preserved for expert analysis. Secondly the investigation needs to determine if the product injured others in order to include other potential claimants to prove that for real, the product was defective. In products liability, the claimant is advised to obtain relevant documents on the product in order to choose the most appropriate theory of liability such as that has a warning, give instructions, warranty terms among others (Schwartz, 1974).
Negligence actions do have also defenses which include the following. The first is the voluntary assumption of risk. This is a situation where a person who indulges in an activity believed to be risky is not able to take legal action for reimbursement if the harm was known that it would occur in the activity. It is assumed that the person know the risks that are bound to happen but still goes on with the activity. For example, a man who goes to skydiving and gets hung up in the power lines. If the skydiving company was to take precautions like dropping the jumpers in a place that would take the jumpers near power lines, it would not be considered like negligence. The other defense is participating in illegal activities which are normally not eligible for compensation, even if the wrongdoer was negligent. For example, a thief breaking into a bank which had a slippery puddle on the floor, left by the manager unsolved and he breaks his hand. There is the inevitable accident which requires the defendant to prove that conditions that occurred were beyond human control and even if intellectual skills were applied it could not have stopped them from happening. For example, coming to a sudden stop after lightening strikes your car, hence you cause a traffic jam. We also have the contributory defense whereby the defendant tries to prove that the plaintiff contributed to damages suffered. So both the defendant and the plaintiff are responsible for the problem. For example, an accident occurs because of driver's careless driving, and a passenger is injured due to the fact that the passenger did not wear a seatbelt.
The rules of both the strict liability and negligence attain the most favorable outcome provided the conditions are the same. This affirms that, in the case of bilateral accidents, we can apply the rule of contributory defense of negligence to face the problem because they are equivalent (West Publishing Company, 1999).