Negligence: Standard of care: Proof: Quality control program
Everyone,
I would like any thoughts you may have regarding the following related issues:
(i) Is a defendant's own quality control program admissible to prove the standard of care in a negligence case brought against him?
(ii) Is the failure of a defendant to follow his own quality control program admissible to prove his negligence (i.e., violation of the standard of care)?
I will greatly appreciate any comment and/or legal authority you may have as to these issues.
Thanks!
Dick
Richard A. Burt, Esq.
BURT & BURT
420 S. Orange Ave., Suite 220
Orlando, FL 32801
(386) 252-2090 (office)
(866) 240-7043 (facsimile)
dick@burt-burt.commailto:dick@burt-burt.com
www.burt-burt.comhttp://www.burt-burt.com/
The uncertainty that follows a Supreme Court opinion that effects a
substantial change in the law . . .
Interesting because if your defendant is not a professional, then the
standard of care would typically be that of a reasonable
contractor/subcontractor/construction manager (setting aside the issue
of whether construction managers might or might not fall into the
"professional" class - insurers seem to think so). So the issue is
whether or not one can (contractually or otherwise) set a standard of
care which may be different from the "reasonable person" standard.
I think the answer is probably yes, and you would might look to cases
where, for example, Company X has a policy that their drivers never
exceed the speed limit, but in the accident, the driver for Company X
was exceeding the speed limit. Or a hospital has a certain standard .
. .
I think the answer is cleaner if the QC standard is a contractual
obligation. There's a fair argument that failing to meet a contractual
standard would be negligence, especially since the ELR is gone. . . .
Bruce D. Partington
Clark Partington
bpartington@cphlaw.com mailto:bpartington@cphlaw.com
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law
NOTICE: This e-mail message and any attachments are private
communication sent by the law firm of Clark Partington Hart Larry Bond &
Stackhouse, and may contain confidential, legally privileged information
meant solely for the intended recipient. If you are not the intended
recipient, you are hereby notified that any use, dissemination,
distribution or copying of this communication is strictly prohibited.
Please notify the sender immediately by replying to this message, and
delete the e-mail and any attachments from your system. Thank you.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
Richard A. Burt
Sent: Wednesday, January 15, 2014 5:21 PM
To: 'clc-discussion@lists.flabarrpptl.org'
Subject: [CLC-Discussion] Negligence: Standard of care: Proof:
Qualitycontrol program
Everyone,
I would like any thoughts you may have regarding the following related
issues:
(i) Is a defendant's own quality control program
admissible to prove the standard of care in a negligence case brought
against him?
(ii) Is the failure of a defendant to follow his own
quality control program admissible to prove his negligence (i.e.,
violation of the standard of care)?
I will greatly appreciate any comment and/or legal authority you may
have as to these issues.
Thanks!
Dick
Richard A. Burt, Esq.
BURT & BURT
420 S. Orange Ave., Suite 220
Orlando, FL 32801
(386) 252-2090 (office)
(866) 240-7043 (facsimile)
May be of interest by analogy http://www.dri.org/DRI/course-materials/2012-Nursing/pdfs/14_Vance.pdf
Sent from my iPhone
On Jan 15, 2014, at 7:48 PM, "Bruce Partington" <bparting@cphlaw.commailto:bparting@cphlaw.com> wrote:
The uncertainty that follows a Supreme Court opinion that effects a substantial change in the law . . .
Interesting because if your defendant is not a professional, then the standard of care would typically be that of a reasonable contractor/subcontractor/construction manager (setting aside the issue of whether construction managers might or might not fall into the “professional” class – insurers seem to think so). So the issue is whether or not one can (contractually or otherwise) set a standard of care which may be different from the “reasonable person” standard.
I think the answer is probably yes, and you would might look to cases where, for example, Company X has a policy that their drivers never exceed the speed limit, but in the accident, the driver for Company X was exceeding the speed limit. Or a hospital has a certain standard . . .
I think the answer is cleaner if the QC standard is a contractual obligation. There’s a fair argument that failing to meet a contractual standard would be negligence, especially since the ELR is gone. . . .
Bruce D. Partington
Clark Partington
bpartington@cphlaw.commailto:bpartington@cphlaw.com
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law
NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Richard A. Burt
Sent: Wednesday, January 15, 2014 5:21 PM
To: 'clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org'
Subject: [CLC-Discussion] Negligence: Standard of care: Proof: Qualitycontrol program
Everyone,
I would like any thoughts you may have regarding the following related issues:
(i) Is a defendant’s own quality control program admissible to prove the standard of care in a negligence case brought against him?
(ii) Is the failure of a defendant to follow his own quality control program admissible to prove his negligence (i.e., violation of the standard of care)?
I will greatly appreciate any comment and/or legal authority you may have as to these issues.
Thanks!
Dick
Richard A. Burt, Esq.
BURT & BURT
420 S. Orange Ave., Suite 220
Orlando, FL 32801
(386) 252-2090 (office)
(866) 240-7043 (facsimile)
dick@burt-burt.commailto:dick@burt-burt.com
www.burt-burt.comhttp://www.burt-burt.com/
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion
Confidentiality Notice: This communication is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521. It is legally privileged (including attachments) and is intended only for the use of the individual(s) or entity(ies) to which it is addressed. It may contain information that is confidential, proprietary, privileged, and/or exempt from disclosure under applicable law. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is strictly prohibited. If you have received this communication in error, please notify us so that we may take the appropriate action and avoid troubling you further. If you are not the intended recipient(s), please destroy this message, and any attachments, and notify the sender by return e-mail. Thank you for your cooperation.
So A (obligee) contracts with B (obligor) and C (plaintiff) wants to enforce the contract.
-
Unless you can show Plaintiff is a 3rd party intended beneficiary to the contract, the answer is no, because otherwise there is no privity.
-
The first element of negligence is duty. Question is who (not what duty) did they owe that ENHANCED duty to? I dont think that enhanced duty was owed to C, it was only owed to A.
Sent from my Samsung Galaxy Note® 3 excuse the typos sent from my smartphone.
Randall Gilbert, Esq.
Gilbert & Caddy PA
1720 Harrison St., Penthouse B
Hollywood, Florida 33020
Rgilbert@TheConstructionLawyers.com
www.GilbertCaddy.com
O (954) 620-5000
F (954) 620-5105
-------- Original message --------
From: "George R. Truitt"
Date:01/15/2014 8:25 PM (GMT-05:00)
To: Bruce Partington
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Negligence: Standard of care: Proof: Qualitycontrol program
May be of interest by analogy http://www.dri.org/DRI/course-materials/2012-Nursing/pdfs/14_Vance.pdf
Sent from my iPhone
On Jan 15, 2014, at 7:48 PM, "Bruce Partington" <bparting@cphlaw.commailto:bparting@cphlaw.com> wrote:
The uncertainty that follows a Supreme Court opinion that effects a substantial change in the law . . .
Interesting because if your defendant is not a professional, then the standard of care would typically be that of a reasonable contractor/subcontractor/construction manager (setting aside the issue of whether construction managers might or might not fall into the “professional” class – insurers seem to think so). So the issue is whether or not one can (contractually or otherwise) set a standard of care which may be different from the “reasonable person” standard.
I think the answer is probably yes, and you would might look to cases where, for example, Company X has a policy that their drivers never exceed the speed limit, but in the accident, the driver for Company X was exceeding the speed limit. Or a hospital has a certain standard . . .
I think the answer is cleaner if the QC standard is a contractual obligation. There’s a fair argument that failing to meet a contractual standard would be negligence, especially since the ELR is gone. . . .
Bruce D. Partington
Clark Partington
bpartington@cphlaw.commailto:bpartington@cphlaw.com
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law
NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Richard A. Burt
Sent: Wednesday, January 15, 2014 5:21 PM
To: 'clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org'
Subject: [CLC-Discussion] Negligence: Standard of care: Proof: Qualitycontrol program
Everyone,
I would like any thoughts you may have regarding the following related issues:
(i) Is a defendant’s own quality control program admissible to prove the standard of care in a negligence case brought against him?
(ii) Is the failure of a defendant to follow his own quality control program admissible to prove his negligence (i.e., violation of the standard of care)?
I will greatly appreciate any comment and/or legal authority you may have as to these issues.
Thanks!
Dick
Richard A. Burt, Esq.
BURT & BURT
420 S. Orange Ave., Suite 220
Orlando, FL 32801
(386) 252-2090 (office)
(866) 240-7043 (facsimile)
dick@burt-burt.commailto:dick@burt-burt.com
www.burt-burt.comhttp://www.burt-burt.com/
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion
Confidentiality Notice: This communication is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521. It is legally privileged (including attachments) and is intended only for the use of the individual(s) or entity(ies) to which it is addressed. It may contain information that is confidential, proprietary, privileged, and/or exempt from disclosure under applicable law. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is strictly prohibited. If you have received this communication in error, please notify us so that we may take the appropriate action and avoid troubling you further. If you are not the intended recipient(s), please destroy this message, and any attachments, and notify the sender by return e-mail. Thank you for your cooperation.
Interesting question that there is obviously no law on our you would not be
polling this group. While my coffee cools I will chime in with my two cents
worth.
I think the answer is yes. I would be looking to see what the QC program
actually entails and why the company has those particular elements in its QC
program.
For instance, there may be a published standard that a particular fabricated
item must have a certain thickness. If it is a specially fabricated item,
then checking that thickness on a piece by piece basis may be reasonable
when if the item is s mass produced fungible item, testing one out of ever
batch of 1,000 might be reasonable. Whether the 5 top producers test every
item or one in 1,000 would also seem relevant to the analysis. So whether
your program tests for thickness and how often the sample is taken would
seem to indicate to me whether you are acting as reasonable producer of that
item.
In similar fashion, where there are no published standards for an item,
whether your QC program contains the same elements and the same rigor as the
other top 5 producers of the item would seem relevant. For instance, my
paper coffee cup. Assumng no published manufacturing guidelines or
specifications. Does the industry of coffee cup manufacturers test their
design to ensure stability in the design so that I don't knock the cup over
easily? Does the industry check for heat transmission through the body of
the cup to assure tha I don't burn my hand picking it up? Do they test the
glue in the bottom of the cup to assure that the lava hot liquid inside does
not dissolve the glue and send the molten mess across my desk or to other
areas that we will not discuss? IF the top 5 producers test for these
items, wouldn't the question of whether brand X tests for those same things
be relevant?
You get my drift. My coffee has now cooled. I apologize for rambling, but
I really needed that 1st cup before sitting down to my email.
Sorry.
Timothy R. Moorhead, Esq.
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments
accompanying it) may contain confidential information belonging to the
sender which is protected by the attorney-client privilege. The information
is intended only for the use of the intended recipient. If you are not the
intended recipient, you are hereby notified that any disclosure, copying,
distribution or the taking of any action in reliance on the contents of this
information is strictly prohibited. Any unauthorized interception of this
transmission is illegal. If you have received this transmission in error,
please promptly notify the sender by reply e-mail, and then destroy all
copies of the transmission.
IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S.
Treasury Department regulations, we hereby advise you that, unless otherwise
expressly stated, any and all tax advice contained in this communication has
neither been written nor intended by the sender or this firm for the use of
any taxpayer for the purpose of evading or avoiding tax penalties that may
be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly
indicated, the use of any tax advice contained in this communication has
neither been written nor intended by the sender or this firm for the purpose
of promoting, marketing, or recommending a partnership or other entity,
investment plan or arrangement to any taxpayer, and such taxpayer should
seek advice on the taxpayer's particular circumstances from an independent
tax advisor.
Replies Filtered: Any incoming reply to this e-mail communication or other
e-mail communication to us will be electronically filtered for "spam" and/or
"viruses." That filtering process may result in such reply or other e-mail
communications to us being quarantined (i.e., potentially not received at
our site at all) and/or delayed in reaching us. For that reason, we cannot
guarantee that we will receive your reply or other e-mail communications to
us and/or that we will receive the same in a timely manner. Accordingly, you
should consider sending communications to us which are particularly
important or time-sensitive by means other than e-mail.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Richard
A. Burt
Sent: Wednesday, January 15, 2014 6:21 PM
To: 'clc-discussion@lists.flabarrpptl.org'
Subject: [CLC-Discussion] Negligence: Standard of care: Proof:
Qualitycontrol program
Everyone,
I would like any thoughts you may have regarding the following related
issues:
(i) Is a defendant's own quality control program admissible to prove the
standard of care in a negligence case brought against him?
(ii) Is the failure of a defendant to follow his own quality control
program admissible to prove his negligence (i.e., violation of the standard
of care)?
I will greatly appreciate any comment and/or legal authority you may have as
to these issues.
Thanks!
Dick
Richard A. Burt, Esq.
BURT & BURT
420 S. Orange Ave., Suite 220
Orlando, FL 32801
(386) 252-2090 (office)
(866) 240-7043 (facsimile)
It's admissible as evidence but should get a cautionary instruction that the
standard is still based on jury instruction / reasonable person (or
professional in case of malpractice claim).
Steinberg 531 So.2d 199
Nesbitt 467 so.2d 711
Michael D. Sechrest
Warner, Sechrest & Butts
5200 SW 91st Terr. Suite 101
Gainesville, FL 32608
(352)373-5922
CONFIDENTIALITY AND PRIVACY NOTICE Information transmitted by this email is
proprietary and is intended for use only by the individual or entity to
which it is addressed, and may contain information that is private,
privileged, confidential or exempt from disclosure under applicable law. If
you are not the intended recipient or it appears that this mail has been
forwarded to you without proper authority, you are notified that any use or
dissemination of this information in any manner is strictly prohibited. In
such cases, please delete this mail from your records. No waiver of
attorney-client privilege is intended under any circumstances.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Richard
A. Burt
Sent: Wednesday, January 15, 2014 6:20 PM
To: 'clc-discussion@lists.flabarrpptl.org'
Subject: [CLC-Discussion] Negligence: Standard of care: Proof:
Qualitycontrol program
Everyone,
I would like any thoughts you may have regarding the following related
issues:
(i) Is a defendant's own quality control program admissible to prove
the standard of care in a negligence case brought against him?
(ii) Is the failure of a defendant to follow his own quality control
program admissible to prove his negligence (i.e., violation of the standard
of care)?
I will greatly appreciate any comment and/or legal authority you may have as
to these issues.
Thanks!
Dick
Richard A. Burt, Esq.
BURT & BURT
420 S. Orange Ave., Suite 220
Orlando, FL 32801
(386) 252-2090 (office)
(866) 240-7043 (facsimile)
