I haven't researched cases. I have studied professional ethics and the laws governing professional liability and specifically the liability in regards to interactions with veterinarians and acts performed at the direction of a veterinarian. If you want to understand accountability and responsibility in regards to this thread you can start by reading up on "respondent superior." Pay particular attention to the reference to independent contractor. http://en.wikipedia.org/wiki/Respondeat_superior You may also want to learn the distinction between a tort and a criminal act as the rules of evidence are significantly different. You will probably at some point come across references to the Nuremberg Trials . . .
I don't want to completely derail this into a construction thread but, that's not true anymore. Now, a lot of construction projects are required to meet criteria for certifications (ie LEED, Earthcents, energy star, Peach points, etc) sometimes change orders effect those certifications even without having any influence on price. There are tons of reasons that change orders are needed and price is only one. Travis, I agree except that both have liability and need to document if someone prevents them from fulfilling their obligations. I also think you have a good plan for handling this, especially if you happen to have some boots you'd be willing to sell the owner. Now, I'm leaving this alone so that we don't get too far into the construction conversation. I only meant to point out that they had a good way for documenting changes that occur in the middle of an agreement. David
Those certs are mainly for tax deductions and reduction of energy use policy, I have never heard of it being a requirement to build a building in my area, only for receiving incentives. I have written hundreds of change orders and they always dealt with money issues. Construction companies really have a very small liability issue. There are to many engineers and inspectors involved in larger scale projects. Basically work doesn't advance if it doesn't meet the criteria for that job no matter what is changed. I have done a lot of work that I knew when finished would not serve the intended purpose because some engineer said that's how it should be done. Then later have to come back and do it properly, then the change orders come out. $$$$$$ Don't you have some law experience, how hard/easy would it be to prove negligence on the farriers part in this case. When directed by the person who is in control of the animal to not reapply the shoes.
Last time I check the owner is not our employer we are independent contractors, so as I read your link it states there is no vicarious liability for independent contractors. I don't put much faith in what wikipedia has to say anyways. I talked to one of my customers who is a prosecutor, she felt that when the owner stated she didn't want shoes applied, she released the farrier from liability or negligence after going against the farriers advice, but it would be wise to get it in writing before leaving the horse barefoot just to CYA because people tend to forget what they said/wanted.
YES they do!!! The rest of it is good to know. In the future I will at least be making a note of it on the receipt.
this is why I keep those pads of ledgers for horseowners, vets, and farriers forms to fill out what you did; what was said; and keep it on file. I had to go back and to an old one, and show it to a owner.......it sets the owner straight. they are only $7.99 for 25 pages......best investment in your business.
You are correct in saying that construction companies have a small portion of the liability for a project. My construction experience is not working for a GC. My experience is in management of construction and I can tell you that GCs also see a very small portion of the change orders. Also, yes those certs are mainly for tax/energy reduction but, in the Atlanta market your permits and construction loans can depend on achieving those certs. As far as the architects and engineers go, the amount of liability they have depends on the contract you use. If you ever deal with an architect who refuses to work under any contract but and AIA ### contract, find someone else to work for. The AIA contracts have a clause that basically says that the Architect has no liability whatever and it all falls to the CM or Engineer (where the liability falls is according to the number of the AIA contract). Anyway, I said I wasn't going to keep derailing this thread so I won't go on but I didn't want to ignore you either. I don't have law experience (as in being or working for a lawyer) I do have a minor in law as part of my business degree. Proving negligence in this case would be almost impossible because the farrier industry in America has no real regulations or code of ethics like lawyers or doctors have. You have to have a standard to be able to prove that someone did not perform up to the standard. However, having some written documentation as to what happened and why (with signatures and dates) could mean the difference between a summary judgement and going to trial. As you know, anyone can sue for anything but, if there is evidence that the suite is baseless a summary judgement can be given and the costs can be significantly reduced.
So, if you trimmed/prepped the hooves to accept shoes and then left, at the [tardy] behest[written or spoken] of the customer, against your better judgement and recommendation(s), the hooves bare, you don't believe that you have engaged in negligent behavior? As for a 'standard/standard of care', I would think that farrier textbooks, the course work offered at farrier schools, the competency requirements to successfully attain a credential from the WCF, GPF, AFA, ELPO, FITS, et al, would well serve a plantiff who was arguing that minimum standards, codified or not, do exist, and that by your actions, you failed to meet even those standards. IOW, you were either incompetent, negligent, or both..... Either way, win or lose, by the time the case is heard, the farrier loses, even if no judgement is entered against him/her. Time, money, potential/actual damage to one's reputation, aggravation, etc, all all 'losses' that can't easily if ever, be recouped.
So this attorney thinks you can be released from your duty of care? Lawyers go to law school for many years to learn how to circumvent ethics. That's why she advised you to CYA in writing for something you know is a bad idea - to circumvent the ethics. Lawyers don't give a damn about right and wrong. They only care about what they can prove to a judge or jury. You went looking for a way to wiggle out of your professional duty of care, and now you have a lawyer (a licensed professional) advising you that it is OK to intentionally do harm by your own hand if you have a written permission slip. What makes you different from the farriers that participate in soreing the big lick horses? As far as I am concerned there is no difference. Both situations dismiss the professional duty of care owed to the horse. Both situations make the same excuse - it is what the owner wants.
Rick, I completely agree with you. However, Justin asked how hard it would be to prove negligence (as in win the case against the farrier). My answer was to that specific question. As to the question I bolded, no they don't serve as a standard. A standard is just that, a written standard that all must comply with. Those guidelines only apply to those who choose to subject themselves to the guidelines. David
Tom, I agree with everything you said ( in this post) except the part I quoted here. I've had many lawyers (guest speakers and law professors) tell me they don't care if they win or lose because they get paid either way. Their job is not to help you win in court, their job is to make sure that you (their customer) get a fair trial and to make sure that all the components of due process are adhered to during the trial. David
IMO the attitude here is "how can I get away with being negligent." The attitude and philosophy is neither professional or ethical. IMO anybody with this attitude is a disgrace and embarrassment to the profession.
David those are platitudes, not reality. About as fair as a game of poker. Most cases never go to trial. Plea bargains and settlements are "deals" made behind closed doors where the parties use whatever leverage and (in the case of the prosecution) trumped up charges to keep a case from going to trial. It ain't about what is "fair," but what can we get away with. And if a criminal defendant is not incredibly wealthy, he is stuck with a public defender that is overworked and underpaid and under constant pressure to plea bargain and NOT take cases to trial. Trials are expensive. The only trials a prosecutor wants are the high profile trials that will make them look good in the news. And despite losing to the defense in OJ Simpson trial Marcia Clark still got famous and made a bunch of money on book deals and interviews for several years following her colossal blunders in the court room. There are no fair trials. Whomever has the most money gets the most "fair" representation. And if you aren't rich you are very likely to be convicted for crimes you didn't commit - how many people (hundreds in the USA) have had their rape convictions overturned once DNA evidence became available to prove their innocence? They didn't get "fair trials" because every one of them was too poor to afford a good defense lawyer that could challenge the prosecutions case.
"De facto standard, product or system with market dominance (1) Standard of care (2), the degree of prudence and caution required of an individual who is under a duty of care (3) 1. A de facto standard is a custom, convention, product, or system that has achieved a dominant position by public acceptance or market forces (such as early entrance to the market). De facto is a Latin phrase meaning "concerning the fact" or "in practice". The term "de facto standard" is used in contrast with obligatory standards (also known as "de jure standards"); or to express the dominant voluntary standard, when there is more than one standard available for the same use. 2. The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person.(4) 3. In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law). Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law. 4. The reasonable person (historically reasonable man) is one of many tools for explaining the law to a jury. The "reasonable person" is an emergent concept of common law. While there is (loose) consensus in black letter law, there is no universally accepted, technical definition. As a legal fiction, the "reasonable person" is not an average person or a typical person. Instead, the "reasonable person" is a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public. The standard also holds that each person owes a duty to behave as a reasonable person would under the same or similar circumstances.While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself. The "reasonable person" construct can be found applied in many areas of the law. The standard performs a crucial role in determining negligence in both criminal law—that is, criminal negligence—and tort law. The standard also has a presence in contract law, though its use there is substantially different. It is used to determine contractual intent, or if a breach of the standard of care has occurred, provided a duty of care can be proven. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant circumstances of the case including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties. The standard does not exist independently of other circumstances within a case that could affect an individual's judgment."
Which of the guidelines have achieved the requirements set forth here to be considered the industry standard? A very good reason to have written documentation of the agreed upon facts. So the "trier of fact" (judge/court/jury) can decide without you having to pay for a trial. Again, if it's documented that you objected to the proposed plan of action but were overruled by the owner, you will limit your liability. JMO David
