Three Years Ago Today...

[Flagg]

By that same logic, if a bunch of protesters chained themselves around some historic building, the wrecking crew could gleefully demolish the building on top of them without being held at all accountable because the protesters were breaking the law by trespassing. It's basically the same blame the victim bullshit spouted in the lawn shooting thread.

[MKSheppard]

Did either one of you two pay enough attention to notice that the circumstances of that event were different?

I assume you're talking about me and Elfdart? This thread is confusing enough with a lot of side debates going on.

The thing is, there was a pair of night vision goggles in the truck, but neither of the drivers was using them because they hadn't been trained by the Guard in their use; so by Mike/Degan's interpretation of Liability law; the MD NG should have been liable, but that obviously was not what happened in the courts.

[CarsonPalmer]

Stark, I'm trying to say, and not very well, apparently, that the soldiers were not malicious or murderers. Just panicky, ill-prepared troops, who made a stupid, tragic mistake.

[Darth Wong]

Stark, I'm trying to say, and not very well, apparently, that the soldiers were not malicious or murderers. Just panicky, ill-prepared troops, who made a stupid, tragic mistake.

You know what, if someone threw a rock at you which only made it halfway to your position (see once again the distances between the soldiers and the rock-throwers and ask yourself how many people can actually throw a rock that far), you would have to be more than "panicky" and "ill-prepared" to shoot him. You'd have to be a raging asshole with most of your testosterone concentrated in your trigger finger.

[CmdrWilkens]

So lets repeat: If the operator obeyed the reaosnable safety procedures for his vehicle (operating procedures) and any additional safety strictures imposed by the ROE (following the ROE) then he would be fulfilling the duty of care expected of him as that is what a reasonable operator would be expected to do.

Bull and shit: none of this flapdoodle of yours exempts an operator from possible criminal liability for negligent homicide (at the least) if he runs over someone with his bulldozer in a situation where he knows there is the possibility of a person or persons being at-risk and fails to take this risk into account in the shaping of his own actions. He doesn't get to hide behind ROE or "reasonable safety procedures" or "expected duty" as an excuse. Under circumstances where there are volatile protesters on-site and willing to block bulldozers with their own bodies, a "reasonable" person is expected, under the law, to conclude that attemting to operate a bulldozer in such a situation will possibly result in someone's death and that his only safe course of action is to not try to drive the damn thing.

You know what I'm going to do this twice once here and once again below.

In a lawsuit involving negligence the plantiff must show that:
1) The defendant owed a duty of care to the plantiff (or to society)
2) The defendant breached that duty of care
3) The plantiff suffered a legal injury as a result of this breach.

Thus if the operator fulfilled their expected duty of care THEY ARE NOT LIABLE DUMB FUCK. You cannot be held liable if you fulfilled your duty of care and proving that the breach occured is NOT a case of the injury speaking for itself UNLESS you are dealing with a situation which is governed under the doctrine of "strict liability." Still even in those situations if there is a clear and obvious assumption of risk on the part of the defendant the defendant might not be liable. If you want to talk about liability and negligence you might want to actually try to understand what it takes to demonstrate negligence and the defense, it turn, against such claims.

As a side note I like how you siezed on the part of my explanation dealing with ROE when the critical part was dealing with oeprating the vehicle within the confines of safe operating procedure, the ROE is just safety requirements palced as a cherry on top of the requirments of normal safe operation. Next time deal with the entirety of my explanation not just one part.

No, Wilkins, I seized on the relevant fact that a book of regulations or procedure DOES NOT TRUMP THE FUCKING LAW NO MATTER HOW MUCH YOU DEARLY WISH TO BELIEVE IT DOES.[/quote]

Here's the reason why:
I NEVER FUCKING SAID THAT!

Jesus H if you had the reading comprehension of a seven year old you might realize that I never fucking said that regs trump the law. Holy fucking christ you like to put words in my mouth. The law states that a plantiff in a negligent homicide case or wrongful death case (or any negligence case) must show that the tortfeaser failed to fulfill a duty of care. My point from the beginning is that operating the vehicle safely by procedure (which GOSH just happens to include accounting as best as possible for personnel within the work area) is proof for the defense that the operator exercised the reasonable care expected of him in performing his duty and thus was not negligent. If you actually bothered to understand what I've been saying you wouldn't have spent all this time bashing a strawman.

[Darth Wong]

The law states that a plantiff in a negligent homicide case or wrongful death case (or any negligence case) must show that the tortfeaser failed to fulfill a duty of care. My point from the beginning is that operating the vehicle safely by procedure (which GOSH just happens to include accounting as best as possible for personnel within the work area) is proof for the defense that the operator exercised the reasonable care expected of him in performing his duty and thus was not negligent. If you actually bothered to understand what I've been saying you wouldn't have spent all this time bashing a strawman.

Ah, so your entire idiot argument is based on the assumption that Army Regulations = Reasonable Duty of Care by definition. In a word, BULLSHIT. "Reasonable" duty of care is determined in civil liability cases by a judge and jury who tend to look at how others would have handled the situation. It is not determined by simply checking to see if the employee violated any of his employer's in-house rules. The fact that a civilian construction crew would have handled things differently would be highly damning evidence regardless of whether you admit it or not.

[CmdrWilkens]

No, you only demonstrated that you can Google something and then massively misinterpret it, dipshit. How the fuck do you explain all of those precedents if your interpretation is correct? I love the way you Google something and then figure that's the same as (or superior to) actually studying the matter from a textbook. How the fuck do you think robbers have successfully sued homeowners for having unsafe premises and then injuring themselves on those premises? Have you honestly NEVER paid any attention to lawsuits?

Problem 1) I googled it because my fucking textbook was in the car
Problem 2) Are any of the precedents you mentioned in the 4 US states (and DC) with contributory negligence laws? Barring that are any in some of the 32 states which set a maximum fault level of 50 or 51% before barring recovery?
Problem 3) You must really be missing out on your reading comprehension when I mentioned:

"Now, not all jurisdictions still hold this as the case I'll grant you"

I know the fucking difference between contiburtory and comparative negligence.

Lets review real quick:
In 4 US states (and DC) they operate under the contributory negligence doctrine
In 11 states they operate under the 50% bar (you cannot recover if at least half the fault is yours)
In 21 states they operate under the 51% bar (as above but you cannot recover if 51% of the fault is yours)

The remaining 13 states operate under a pure comparative fault rule (which you described above as far as mitigating damages) Also in the 32 states with 50 and 51% bars any fault below that is determined using the comparative fault rules.


Since you don't seem to believe that such doctrines exist and are upheld lets crush that idea with this: (from BOARD OF COUNTY COMMISSIONERS
OF GARRETT COUNTY, MARYLAND v. BELL ATLANTIC-MARYLAND, INC. 695 A.2d 171 (Md. 1997).

" Under Maryland law, contributory negligence of a plaintiff will
ordinarily bar his, her, or its recovery. Contributory negligence
is that degree of reasonable and ordinary care that a plaintiff
fails to undertake in the face of an appreciable risk which
cooperates with the defendant's negligence in bringing about the
plaintiff's harm. Wegad v. Howard Street Jewelers, 326 Md. 409,
418, 605 A.2d 123, 128 (1992); Menish v. Polinger Co., 277 Md. 553,
559, 356 A.2d 233, 236 (1976). As with any affirmative defense,
contributory negligence will not bar a plaintiff's claim unless and
until the defendant has proven its elements by a preponderance of
the evidence.13 Myers v. Bright, 327 Md. 395, 403, 609 A.2d 1182,
1186 (1992); Baltimore & Ohio Rail Co. v. State, 60 Md. 449, 462
(1883)."

Now what is above is the court's definition and sourcing of the doctrine of contributory negligence in the state of Maryland. In the case at hand contributory negligence was not shown but the court DID go on to say
"... the County's contributory negligence defense — a defense, we note, that may be available under Miss Utility in an appropriate case, as it
ordinarily would be in any negligence action." Emphasis mine.

The disagreement is to whether the operator breached that duty of care. Nothing I've yet seen has shown the operator to have acted in any way not consistent with the reasonable care all heavy equipment operators are expected to take.

Bullshit. If a heavy machine operator on a construction site knew that trespassers were milling around his machine, he would stop operating the machine until those trespassers could be removed.

All of which does not apply to a situation where continued operation was neccessarry to protect lives in terms of excavating weapons caches. If the operator had STOPPED he could be guilty of not only disobeying orders (which is an aside) but also of negligence for failure to remove weapons from the control of insurgent forces. While it might seem unlikely to be proven in court should the operator have stopped and the weapons been retained then used the operator would be negligent in the deaths caused by those weapons. It is a question of competing duties and a matter as to WHICH was greater : the duty to protect the state through securing of enemy munitions or the protection of foreign nationals, take a guess which duty a trial court would rule is greater.

You keep attempting to equate operations in hostile terriotry to civilian operations. The fact that it is occupied territory does not change the balance of threat to the state and its citizens possesed by those persons who controlled the very weapons the mission was intent on discovering and destroying.

A car driver is expected to be able to perate his vehicle wihtin the law and with due care for pedestrians not prepare for people to jump in front of the vehicle, in such a situation the driver woudl not be begligent because he fullfilled his duty of care. Given that I would be judged under the exact same doctrine for my own conduct and my own conduct would be used as part of the basis for determining reasonable conduct for a heavy equipment operator I'd say I might have a slightly more informed opinion than you.

More bullshit; you know perfectly well that if you were on a civilian construction site and you knew a bunch of people were milling around your vehicle, you would stop the machine until those people could be removed. You would not just continue operating your front-end loader or dump truck or whatever as if those people weren't there.

Yup and if I was in Iraq right now I would probably keep operating while other forces attempted to remove the civilians. Also next time you want to slip in the unjustified assumption that the operator did not take additional precautions due to the prescence of personnel on the ground I'd like to see some form of back up to it. In Iraq should there have been personnel present while I was attempting to clear out weapons caches I can't say I would have acted exactly as the driver did but nothing he did do strikes me as unreasonable in terms of the manner in which he operated.

That is unless you want to claim you actually know how to safely operate an armored D7. Barring that I'd like to see the minimum standard of proof that the operator breached the duty he owed to Corrie and the injury itself is not proof of that. You have gone on that the oeprator owed a duty of care and yes he did but you haven't yet shown how he breached it. So if you want to claim the operator was negligent then show me how a reasonable operator would have acted in a way that he did not which would have prevented her injury.

I've already pointed out how he breached his duty of care several times, fucktard. What you're saying is that he was within his rules of engagement, which is a complete RED HERRING.

NO I am not saying that (christ go look at my response to Degan on that one). You have NOT pointed out how he breached his duty of care you SAY you have but you have not. Her injury itself is not proof that he breached his duty of care. Part of the problem is you've never defined the scope of the operator's duty of care, was he suppossed to risk his own life to avoid risk of harm to her? Was he suppossed to risk the lives of his taskforce to avoid risk of harm to her? Was he suppossed to risk harm to the state to avoid risk of harm to her? No one owes an unlimited duty to prevent harm to another person, we owe a REASONABLE duty of care and you have yet to show how, give the operator's duty, he acted in a way that failed to exercise reasonable care.



Complete side note on your given case I'll only point out that it did not occur in any of the 37 jurisdictions I mentioned that have a bar on recovery based on plantiff's fault. If you want to claim I've got a google fu problem well go fuck yourself.

[Darth Wong]

Problem 1) I googled it because my fucking textbook was in the car
Problem 2) Are any of the precedents you mentioned in the 4 US states (and DC) with contributory negligence laws? Barring that are any in some of the 32 states which set a maximum fault level of 50 or 51% before barring recovery?

Question: do you believe that Israel is part of the United States? What kind of marks did you get in geography class?

Problem 3) You must really be missing out on your reading comprehension when I mentioned:

"Now, not all jurisdictions still hold this as the case I'll grant you"

I know the fucking difference between contiburtory and comparative negligence.

Yet you believe that if the other party did something stupid, you completely eliminate responsibility. That's now how it works: assessment of the defendant's negligence is based upon his duty of care, his breach of said duty, and assessment of damages owing to that breach. That's from the old English laws which are more likely to apply to Israel than any particular American laws, even assuming you are not misinterpreting them in light of contradictory precedent WHICH I NOTICE YOU IGNORED IN YOUR REBUTTAL.

Lets review real quick:
In 4 US states (and DC) they operate under the contributory negligence doctrine
In 11 states they operate under the 50% bar (you cannot recover if at least half the fault is yours)
In 21 states they operate under the 51% bar (as above but you cannot recover if 51% of the fault is yours)

The remaining 13 states operate under a pure comparative fault rule (which you described above as far as mitigating damages) Also in the 32 states with 50 and 51% bars any fault below that is determined using the comparative fault rules.

Since you don't seem to believe that such doctrines exist and are upheld lets crush that idea with this: (from BOARD OF COUNTY COMMISSIONERS
OF GARRETT COUNTY, MARYLAND v. BELL ATLANTIC-MARYLAND, INC. 695 A.2d 171 (Md. 1997).

" Under Maryland law, contributory negligence of a plaintiff will
ordinarily bar his, her, or its recovery. Contributory negligence
is that degree of reasonable and ordinary care that a plaintiff
fails to undertake in the face of an appreciable risk which
cooperates with the defendant's negligence in bringing about the
plaintiff's harm. Wegad v. Howard Street Jewelers, 326 Md. 409,
418, 605 A.2d 123, 128 (1992); Menish v. Polinger Co., 277 Md. 553,
559, 356 A.2d 233, 236 (1976). As with any affirmative defense,
contributory negligence will not bar a plaintiff's claim unless and
until the defendant has proven its elements by a preponderance of
the evidence.13 Myers v. Bright, 327 Md. 395, 403, 609 A.2d 1182,
1186 (1992); Baltimore & Ohio Rail Co. v. State, 60 Md. 449, 462
(1883)."

Got any case studies demonstrating what actually constitutes a legitimate defense under this doctrine? Particularly in light of the various precedents to the contrary which you seem to have ignored?

Now what is above is the court's definition and sourcing of the doctrine of contributory negligence in the state of Maryland. In the case at hand contributory negligence was not shown but the court DID go on to say

"... the County's contributory negligence defense — a defense, we note, that may be available under Miss Utility in an appropriate case, as it
ordinarily would be in any negligence action." Emphasis mine.

[/quote]
Got any case studies demonstrating what actually constitutes a legitimate defense under this doctrine? Particularly in light of the various precedents to the contrary which you seem to have ignored?

Bullshit. If a heavy machine operator on a construction site knew that trespassers were milling around his machine, he would stop operating the machine until those trespassers could be removed.

All of which does not apply to a situation where continued operation was neccessarry to protect lives in terms of excavating weapons caches.

I see you have chosen to "creatively" interpret the concept of immediate danger.

If the operator had STOPPED he could be guilty of not only disobeying orders (which is an aside) but also of negligence for failure to remove weapons from the control of insurgent forces. While it might seem unlikely to be proven in court should the operator have stopped and the weapons been retained then used the operator would be negligent in the deaths caused by those weapons. It is a question of competing duties and a matter as to WHICH was greater : the duty to protect the state through securing of enemy munitions or the protection of foreign nationals, take a guess which duty a trial court would rule is greater.

I like the way you assume that stopping long enough for soldiers to drag away the civilians would result in permanent scrapping of the mission, even if we assume that you are correct about these weapon caches.

You keep attempting to equate operations in hostile terriotry to civilian operations. The fact that it is occupied territory does not change the balance of threat to the state and its citizens possesed by those persons who controlled the very weapons the mission was intent on discovering and destroying.

It does, however, mean that they have a requirement to safeguard civilian life under the Geneva Convention. A requirement which they, and you, seem to disregard.

More bullshit; you know perfectly well that if you were on a civilian construction site and you knew a bunch of people were milling around your vehicle, you would stop the machine until those people could be removed. You would not just continue operating your front-end loader or dump truck or whatever as if those people weren't there.

Yup and if I was in Iraq right now I would probably keep operating while other forces attempted to remove the civilians.

That's great; you're right because you say you would do it yourself. Ah, the Appeal to Me argument. It's truly a masterwork of logic.

Also next time you want to slip in the unjustified assumption that the operator did not take additional precautions due to the prescence of personnel on the ground I'd like to see some form of back up to it. In Iraq should there have been personnel present while I was attempting to clear out weapons caches I can't say I would have acted exactly as the driver did but nothing he did do strikes me as unreasonable in terms of the manner in which he operated.

See above.

I've already pointed out how he breached his duty of care several times, fucktard. What you're saying is that he was within his rules of engagement, which is a complete RED HERRING.
NO I am not saying that (christ go look at my response to Degan on that one). You have NOT pointed out how he breached his duty of care you SAY you have but you have not.

He breached his duty of care according to any standard OTHER than the one you keep referring to, which is "what I would do". You even sidestep that argument when I point out that a civilian heavy machine operator would not do that, and then make the preposterous argument that the safety standards for military personnel are identical to those for civilians.

Her injury itself is not proof that he breached his duty of care. Part of the problem is you've never defined the scope of the operator's duty of care, was he suppossed to risk his own life to avoid risk of harm to her? Was he suppossed to risk the lives of his taskforce to avoid risk of harm to her? Was he suppossed to risk harm to the state to avoid risk of harm to her? No one owes an unlimited duty to prevent harm to another person, we owe a REASONABLE duty of care and you have yet to show how, give the operator's duty, he acted in a way that failed to exercise reasonable care.

I see George W. Bush's mentality for invading Iraq has completely co-opted your brain. It's OK to sacrifice lives in order to FIGHT TERROR, and if you slack up, then you RISK KILLING US ALL. What a load of bullshit; once more, I must remind you that there was no clear and present danger forcing his immediate disregard of civilian safety.

Complete side note on your given case I'll only point out that it did not occur in any of the 37 jurisdictions I mentioned that have a bar on recovery based on plantiff's fault. If you want to claim I've got a google fu problem well go fuck yourself.

You're the asshole who originally claimed that it would apply to this situation; in case you're too fucking stupid to remember how this works, it means the burden of proof is on you. So prove it.

PS. Remember: Maryland is not actually the same place as Israel. And you seem to have backpedaled from "all heavy equipment operators" to "well, it's a warzone so your civilian rules don't apply".

[Patrick Degan]

So lets repeat: If the operator obeyed the reaosnable safety procedures for his vehicle (operating procedures) and any additional safety strictures imposed by the ROE (following the ROE) then he would be fulfilling the duty of care expected of him as that is what a reasonable operator would be expected to do.

Bull and shit: none of this flapdoodle of yours exempts an operator from possible criminal liability for negligent homicide (at the least) if he runs over someone with his bulldozer in a situation where he knows there is the possibility of a person or persons being at-risk and fails to take this risk into account in the shaping of his own actions. He doesn't get to hide behind ROE or "reasonable safety procedures" or "expected duty" as an excuse. Under circumstances where there are volatile protesters on-site and willing to block bulldozers with their own bodies, a "reasonable" person is expected, under the law, to conclude that attemting to operate a bulldozer in such a situation will possibly result in someone's death and that his only safe course of action is to not try to drive the damn thing.

You know what I'm going to do this twice once here and once again below.

No, I think you're just going to keep bullshitting your way through this thread while ignoring every valid argument which shows you're spewing bullshit.

In a lawsuit involving negligence the plantiff must show that:
1) The defendant owed a duty of care to the plantiff (or to society)
2) The defendant breached that duty of care
3) The plantiff suffered a legal injury as a result of this breach.

Thus if the operator fulfilled their expected duty of care THEY ARE NOT LIABLE DUMB FUCK.

I'm not responsible for your fantasies. Trying to hide behind the "expected duty of care" argument in the face of actual legal operation is making you look like a fool.

You cannot be held liable if you fulfilled your duty of care and proving that the breach occured is NOT a case of the injury speaking for itself UNLESS you are dealing with a situation which is governed under the doctrine of "strict liability." Still even in those situations if there is a clear and obvious assumption of risk on the part of the defendant the defendant might not be liable. If you want to talk about liability and negligence you might want to actually try to understand what it takes to demonstrate negligence and the defense, it turn, against such claims.

To which this:

To constitute a crime, there must be an actus reus (Latin for "guilty act") accompanied by the mens rea (see concurrence). Negligence shows the least level of culpability, intention being the most serious and recklessness of intermediate seriousness, overlapping with gross negligence. The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness is usually described as a 'malfeasance' where the defendant knowingly exposes another to the risk of injury. The fault lies in being willing to run the risk. But criminal negligence is a 'misfeasance or 'nonfeasance' (see omission), where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. In some cases this failure can rise to the level of wilful blindness where the individual intentionally avoids adverting to the reality of a situation (note that in the United States, there may sometimes be a slightly different interpretation for wilful blindness). The degree of culpability is determined by applying a reasonable person standard. Criminal negligence becomes "gross" when the failure to foresee involves a "wanton disregard for human life" (see the discussion in corporate manslaughter).

The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:

1. subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused;
2. objective where the court imputes mens rea elements on the basis that a reasonable person with the same general knowledge and abilities as the accused would have had those elements; or
3. hybrid, i.e. the test is both subjective and objective.

The most culpable mens rea elements will have both foresight and desire on a subjective basis. Negligence arises when, on a subjective test, an accused has not actually foreseen the potentially adverse consequences to the planned actions, and has gone ahead, exposing a particular individual or unknown victim to the risk of suffering injury or loss. The accused is a social danger because he or she has endangered the safety of others in circumstances where the reasonable person would have foreseen the injury and taken preventive measures. Hence, the test is hybrid.

What is the reasonable person standard?

This is not a real person but a legal fiction, an objective yardstick against which to measure the culpability of real people. For these purposes, the reasonable person is not an average person: this is not a democratic measure. To determine the appropriate level of responsibility, the test of reasonableness has to be directly relevant to the activities being undertaken by the accused. What the ‘average person’ thinks or might do would be irrelevant in a case where a doctor is accused of wrongfully killing a patient during treatment. Hence, there is a baseline of minimum competence that all are expected to aspire to. This reasonable person is appropriately informed, capable, aware of the law, and fair-minded. This standard can never go down, but it can go up to match the training and abilities of the particular accused. In testing whether the particular doctor has misdiagnosed a patient so incompetently that it amounts to a crime, the standard must be that of the reasonable doctor. Those who hold themselves out as having particular skills must match the level of performance expected of people with comparable skills. When engaged in an activity outside their expertise, such individuals revert to the ordinary person standard. This is not to deny that ordinary people might do something extraordinary in certain circumstances, but the ordinary person as an accused will not be at fault if he or she does not do that extraordinary thing so long as whatever that person does or thinks is reasonable in those circumstances.

. . .

English law definition

The leading statement to describe 'criminal negligence' at common law for the purposes of establishing a test for manslaughter in English law, may be found in the statement by Lord Hewart CJ in the case of R v Bateman (1925) 28 Cox's Crim Cas 33:

"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."





References

Garfield, A More Principled Approach to Criminalizing Negligence: A Prescription for the Legislature, (1009) Vol. 65 Tennessee Law Review, 87

—says you don't know what the fuck you're talking about.

As a side note I like how you siezed on the part of my explanation dealing with ROE when the critical part was dealing with oeprating the vehicle within the confines of safe operating procedure, the ROE is just safety requirements palced as a cherry on top of the requirments of normal safe operation. Next time deal with the entirety of my explanation not just one part.

No, Wilkins, I seized on the relevant fact that a book of regulations or procedure DOES NOT TRUMP THE FUCKING LAW NO MATTER HOW MUCH YOU DEARLY WISH TO BELIEVE IT DOES.

Here's the reason why:
I NEVER FUCKING SAID THAT!

On the contrary, Wilkins, your entire position attempts to argue exactly that.

Jesus H if you had the reading comprehension of a seven year old...

Says the man who's willfully ignoring cited legal precedent which destroys your entire position. I wouldn't talk about reading-comprehension skills if I were you.

...you might realize that I never fucking said that regs trump the law. Holy fucking christ you like to put words in my mouth. The law states that a plantiff in a negligent homicide case or wrongful death case (or any negligence case) must show that the tortfeaser failed to fulfill a duty of care. My point from the beginning is that operating the vehicle safely by procedure (which GOSH just happens to include accounting as best as possible for personnel within the work area) is proof for the defense that the operator exercised the reasonable care expected of him in performing his duty and thus was not negligent. If you actually bothered to understand what I've been saying you wouldn't have spent all this time bashing a strawman.

You can't strawmander an argument which has no validity in the first place.

[Edi]

Did either one of you two pay enough attention to notice that the circumstances of that event were different?

I assume you're talking about me and Elfdart? This thread is confusing enough with a lot of side debates going on.

The thing is, there was a pair of night vision goggles in the truck, but neither of the drivers was using them because they hadn't been trained by the Guard in their use; so by Mike/Degan's interpretation of Liability law; the MD NG should have been liable, but that obviously was not what happened in the courts.

Yes, I was replying to you and Elfdart. The presence of the NV goggles in the truck is problematic for the NG, but it does not change the fact that the soldier who got killed was (as far as we can infer from the article) in greater breach of security procedures. By neglecting his own duty of care he got himself killed, so it is very hard to justify convicting the truck crew of murder or even manslaughter, or the NG organization as a whole. Now, if a civilian had been killed in the same fashion, it'd be a different story and then the NG and the truck crew would have been in deep shit.

Edi