The clarity of damages in the case of Burt and Ernie is seen at a glance in that Burt suffered injuries and was taken to hospital, and it is evident he stayed for some time before getting well. According to Owen (2007), the plaintiff must prove of all the elements of negligence of tort, in order to show proof that the defendant was negligent. It is paramount that the elements of negligence of tort be considered in relation to this case.

In relation to the duty of care, Owen (2007) posits that, the outcome of a negligence case is dependent on whether the defendant owed any duty of care to the plaintiff. In regard to the case of Ernie and Burt, Ernie had the duty of care for Burt and his vehicle. Considering how a reasonable person would have acted in such a case (Schwartz, 1978), it is evident that Ernie did not act reasonably. Since A duty is determined by the relationship that exists between the claimant or plaintiff and the defendant (Buckley and Okrent, 2003), a relationship exists between Ernie and Burt. The relation is seen in the fact that they are both users of the road and that they have a duty to protect one another, especially if they acted reasonably. From the explanation in the case, there is an aspect of breach of duty by the defendant, though this is left to the jury to decide. According toSchwartz (1978), a breach of duty arises when the defendant fails to exercise reasonably towards the plaintiff, leading to harm to them.

The element of Cause in Fact, is seen in the sense that, if were not for Ernie’s action, Burt wouldn’t have injured. Owen (2007) asserts that, in Cause in Fact element, the plaintiff cannot be injured, were it not for the actions of the defendant. Burt also has the opportunity to prove an element of proximate cause. Schwartz (1978) shows that the element of proximate cause depends on the ability of the defendant to foresee that their actions will cause harm to the plaintiff. I this case, Ernie would have foreseen that hitting Burt will result to injuries.

In regard to the element of damages (Owen 2007), shows that the plaintiff must be able to prove that they suffered substantial damages as a result of the negligent action of the defendant. This can be in the form of physical damage to property or to the person. This will be a bit easy for Burt to prove, since he was taken to hospital and took some days to heal. However, Burt will not recover full damages. Ernie has a contributory negligence defense against Burt. According to Galigan (1993), comparative negligence arises when the plaintiff partly contributed to the cause of their harm. In regard to the case of Burt and Ernie, the defendant run the lights before hitting the plaintiff, and there is no record of what the plaintiff did to prevent himself from the injury. Additionally, Burt was not wearing his safety-belt. It is, therefore, considered that the plaintiff unreasonably put himself in a risky situation (FindLaw 2014).

A patent is used to protect the expression of knowledge or an idea (The National Archives 1988). It does not protect the result of the idea. For example, the whole idea of a rocket cannot be patented. However, the method behind the making of a rocket can be patented. This goes hand in hand with the idea of the design of the various parts that are involved in making a rocket. This is different from a copyright which protects an idea that is expressed through creative medium. Also, it is different from a trademark, which is a symbol representing the origin. Finally, it is different from a trade secret which is a representation of the information a manufacturer would wish to protect from competitors.

A copyright is used to protect the specific creative expression of an idea, which is passed through an artistic or creative medium (Meiners and Staaf 1990). Examples are software, paintings, sculpture, photographs and writings. The aspect of creative expression differentiates a patent from a copyright. A trademark is used to protect a symbol that is used to indicate the source or origin of goods or services. It is affixed in a good or service in order to identify the good with a particular producer. A trademark is aimed at protecting consumers from fraudulent businesspeople. It allows consumers to know where a particular good has originated. In addition, it allows producers and manufacturers to protect their clients from counterfeit goods. In this case, it allows consumers to make decisions regarding the purchase of the items. While a copyright protects an expression of the works of authorship, for example, drawings, a trademark protects the logos, or words. For example, to protect a title or a slogan, a trademark is used.

A trade secret refers to the information that is contained in the formula, the compilation, the device, the technique, process or method that has the economic value, which is not known by other people who may obtain economic value from knowing that information. It is based on reasonable efforts in regard to the circumstances that call for the maintenance of its secrecy. While a patent protects an invention, a trade secret prevents the information that one may not want their competitors to know (The UK Copyright Service 1988). Additionally, a patent protects a new invention, while a trade secret prevents a fact. The information protected under a trade secret must be a fact. A copyright on the other hand, protects against the expression of the idea or the knowledge.

REFERENCES

Buckley, R.W., & Okrent, C. J. 2003. Torts and Personal injury law. Independence, KY: Cengage Learning

FindLaw. 2014. Contributory and comparative negligence. Retrieved online from http://injury.findlaw.com/accident-injury-

Galigan, T.C. 1993. Primer on the patterns of negligence. Louisiana Law Review, Vol 53, Rev. 1509.

Meiners, E. R., & Staaf. J. R. 1990. ‘Copyrights, patents and trademarks: Property or monopoly’. Harvard Journal of Law, Vol 13, no 911.

Owen, G. D. 2014. ‘The five elements of negligence’. Hofstra Law Review, Vol 35, no 4, pp: 1671-1678.

Schwartz, G. T. 1978. ‘Contributory and comparative negligence: A re-appraisal’. The Yale Law Journal, Vol 87, no 4, pp: 697-727.

The National Archives. 1988. Copyrights, designs and patents Act 1988. Retrieved online from http://www.legislation.gov.uk/ukpga/1988/48/contents

The UK Copyright Service. 1988. Copyrights, designs and patents Act 1988: Summary. Retrieved online from http://www.copyrightservice.co.uk/copyright/uk_law_summary