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BLD, Daily News, Pop Law, Unsolicited Advice

Know the Elements: Negligence

Pink Slime, a/k/a Meat via Blog Upstream

Recently, people found out that McDonald’s stopped using ammonium hydroxide in the food it serves in the U.S. and select other locations. While we could take on the possible legalities of putting mysterious chemicals in meat products, we will leave that for another time, except to say that this is a practice that is everywhere in the food service industry and that the chemical is “generally recognized as safe.”

However, this story and anything having to do with McDonald’s seemed to be good segues into talking about how people have the ability to sue that company for everything from poor maintenance to their massive weight gain.

The reason they are able to begin these suits is because of negligence.

Negligence as a whole is a topic of discussion that equals “the meaning of life” in its breadth, however, we can still discuss the elements and give you a flavor of what it actually is without biting too deep into the (mechanically separated) meat of the topic.

Let’s start with the legal dictionary definition and go from there:

The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent or reasonable man would not do…

This definition points to what is known in legal circles as the “reasonably prudent person.” It is a personification of the correct thing to do in any given situation, however, the RPP could not possibly exist because he or she would have to be perfect 100% of the time, which defies human nature.

What the definition of negligence does not do, however, is really tell anyone the elements of negligence. However, the elements of negligence are:

  1. Duty
  2. Breach
  3. Causation
  4. Forseeability (a/k/a proximate cause), and
  5. Damages

Everyone understands the concept of a duty, and how it exists in the legal world is very similar to how it exists everywhere else. Duty means that there is a responsibility to do or not do something. The key difference between the legal sphere and the real world is that in the law there is no moral component. With McDonald’s it is almost guaranteed that there will be a lawsuit over the pink slime which alleges that the fast food chain had a duty to disclose its use of ammonium hydroxide because it is an “ingredient” (according to the FDA it’s not), but since it is not, there is only the feeling that they should have told us.

Breach refers to breaching a duty. So, if you have a duty to do something, and you do not do it, then you have breached your duty. Again, with the pink slime, if McDonald’s had a duty to tell the public about the chemicals it puts in its meat, then it breached that duty when it failed to tell anyone.

There are two types of causation, actual and proximate. Actual cause is what it sounds like. Finding the actual cause of an event requires looking at the facts surrounding and the result of an event and determining how it happened. So, hypothetically, if someone eating at McDonald’s (or Taco Bell) comes down with ammonia poisoning (or your kid comes down with salmonella) and it is shown that pink slime introduced too much ammonia into that person’s system, or did not decontaminate the meat, that is the actual cause of the injuries.

Proximate cause is much more nebulous. It is often referred to a foreseeability or “but-for” causation. In other words, granted that ammonium hydroxide is harmful, would it be foreseeable that someone would be hurt by unknowingly eating fast food that was full of it? Or, (hypothetically) but for McDonald’s failure to tell people about the pink slime, would people have known to avoid it? 

In cases like a hypothetical suit against McDonald’s, establishing proximate cause usually hinges upon what the McDonald’s quality control executives knew and when they knew it.

Lastly, damages refers to the injuries sustained and how much they cost. So, if someone ate the ammonium hydroxide and only got the runs, a common fast food occurrence, then they could possibly have a cause of action against McDonald’s allowing them to collect the five or so dollars that a box of Imodium AD costs. However, if it turns out that they suffered, say, long-term liver damage it would be a whole lot more.

So now you know the elements of negligence.

It is impossible to avoid negligence. Most of us are negligent at least one to five times per day. Just look at YouTube which is a case study on negligence. So relax.

To be negligent is to be human.

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About E.C.

Corporate and regulatory attorney. Also experienced in advocacy for the mentally disabled and minor litigation matters. Not currently practicing, but maintaining the blog to keep my research and writing skills sharp. Splitting time between Connecticut and Massachusetts.

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