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BBR Title Slide Fall 2006 INSTRUCTOR: TROY R. SZABO T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM.

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Presentation on theme: "BBR Title Slide Fall 2006 INSTRUCTOR: TROY R. SZABO T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM."— Presentation transcript:

1 BBR Title Slide Fall 2006 INSTRUCTOR: TROY R. SZABO T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM

2 COURSE OVERVIEW T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM

3 ACQUIRE FUNDAMENTALS OF TORT LAW ACQUIRE FUNDAMENTALS OF TORT LAW ENHANCE CASE ANALYSIS AND EVALUATION ENHANCE CASE ANALYSIS AND EVALUATION UNDERSTAND CASE STRUCTURE AND TIMELINE UNDERSTAND CASE STRUCTURE AND TIMELINE ENHANCE CASE DEVELOPMENT SKILLS ENHANCE CASE DEVELOPMENT SKILLS ENHANCE DAY-TO-DAY PARALEGAL SKILLS ENHANCE DAY-TO-DAY PARALEGAL SKILLS COURSE OBJECTIVES

4 WHAT IS A TORT?

5 TORT: A wrongful injury to a person or his/her property. Or A civil wrong against another

6 Person may include an actual living person or a business, such as a partnership or corporation.

7 BROAD CATEGORIES OF TORT LAW: NEGLIGENCE INTENTIONAL TORTS STRICT LIABILITY

8 WHAT ARE SOME REAL-LIFE EXAMPLES OF TORT CASES?

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13 NEGLIGENCE: The failure to exercise ordinary care.

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15 ORDINARY CARE: That degree of care that would be exercised by a reasonably prudent person under the same or similar circumstances.

16 Put differently, Negligence is: Doing something that a reasonably careful person would not do (a negligent act) Doing something that a reasonably careful person would not do (a negligent act) OR Failing to do something that a reasonably careful person would do (a negligent omission). Failing to do something that a reasonably careful person would do (a negligent omission).

17 COMMON ELEMENTS OF ALL TORT CASES: DUTY BREACH OF DUTY CAUSATION DAMAGES

18 UNSPOKEN ELEMENT OF ALL TORT CASES: A SOLVENT DEFENDANT WHO CAN PAY DAMAGES WHICH MEANS EITHER: INSURANCE WEALTH/LIQUID ASSETS HOWEVER – BANKRUPTCY IMPLICATIONS

19 PUBLIC POLICY OBJECTIVES IN TORT LAW

20 Accountability: Protecting persons and property Accountability: Protecting persons and property Deterrence: Minimum standards of social conduct Deterrence: Minimum standards of social conduct Allocating Losses: Placing the economic burden where it can best be afforded Allocating Losses: Placing the economic burden where it can best be afforded

21 ANALYZING TORT CASES

22 ANALYTICAL FRAMEWORK: IRAC Which Issues are presented; i.e., what general area of law is involved Which Issues are presented; i.e., what general area of law is involved What is the applicable Rule of law? What is the applicable Rule of law? Apply the rule to the facts. Apply the rule to the facts. This produces the appropriate Conclusion. This produces the appropriate Conclusion.

23 CASE ANALYSIS: GENERAL TO SPECIFIC Example: Customer walks up to a store clerk and strikes him until he collapses

24 CASE ANALYSIS: GENERAL TO SPECIFIC General tort topic: Example: intentional General tort topic: Example: intentional Specific tort: Example: Battery Specific tort: Example: Battery Issues framed by facts:A customer strikes a store clerk Issues framed by facts:A customer strikes a store clerk Rule of law:Unwanted touching = battery Rule of law:Unwanted touching = battery Apply rule to facts:The beating = unwanted touching Apply rule to facts:The beating = unwanted touching

25 CASE ANALYSIS: A QUESTION TO ASK What is a jury likely to do?

26 CASE EVALUATION: A QUESTION TO ASK What is the case worth?

27 OVERVIEW OF A CIVIL CASE

28 HOW A CIVIL CASE PROGRESSES PLAINTIFF FILES A COMPLAINT DEFENDANT FILES AN ANSWER THE PARTIES ENGAGE IN DISCOVERY PRETRIAL PROCEDURES AND MOTIONS TRIAL POST-TRIAL AND APPEAL ALTERNATIVE DISPUTE RESOLUTION

29 COMPLAINT OR PETITION A PLEADING FILED BY PLAINTIFF IN COURT THAT INITIATES A LAWSUIT. IN CALIFORNIA, CALLED A COMPLAINT. MUST BE SERVED ON DEFENDANT; GENERALLY SERVICE IS HAND DELIVERY BY AUTHORIZED OFFICER (USUALLY A SHERIFF OR DEPUTY). CAN ALSO SERVE BY MAILING. 4.NATURAL PERSON IS SERVED IN PERSON. CORPORATION IS SERVED BY SERVING REGISTERED AGENT, PRESIDENT OR VICE- PRESIDENT.

30 COMPLAINT CONTD: STATUTE OF LIMITATIONS: FOR MOST INJURY AND PROPERTY DAMAGE CASES = 2 YEARS STATUTE OF LIMITATIONS: FOR DEFAMATION, FALSE ARREST = 1 YEAR LIMITATIONS PERIOD GENERALLY BEGINS TO RUN WITH DATE OF THE INCIDENT IN QUESTION

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41 ANSWER WRITTEN RESPONSE OF DEFENDANT TO PETITION OR COMPLAINT IN CALIFORNIA, ANSWER DUE 30 DAYS AFTER SERVICE. IN CALIFORNIA, THE ANSWER MAY BE A GENERAL DENIAL ONLY OR MAY ALSO ALLEGE DEFENSES. IN FEDERAL COURT, MUST RESPOND TO EACH ALLEGATION OF COMPLAINT AND ALLEGE DEFENSES.

42 DISCOVERY DISCLOSURES – BASIC REQUIRED INFORMATION. INTERROGATORIES REQUESTS FOR PRODUCTION OF DOCUMENTS REQUESTS FOR ADMISSION MOTION FOR INDEPENDENT MEDICAL EXAMINATION DEPOSITIONS ON WRITTEN QUESTIONS ORAL/VIDEO DEPOSITIONS

43 PRETRIAL PROCEDURES AND MOTIONS COURT ISSUES ON ITS OWN, OR AT REQUEST OF ONE OR MORE PARTIES, A CASE MANAGEMENT DOCUMENT SETS DEADLINES, INCLUDING A SETTLEMENT CONFERENCE AND TRIAL SETTING CONFERENCE. A CASE MAY BE PUT ON THE FAST TRACK – GOES TO TRIAL WITHIN A YEAR OF FILING. POSSIBLE JOINDER OF ADDITIONAL PARTIES – ADDITIONAL DEFENDANTS, INTERVENORS OR THIRD PARTY DEFENDANTS

44 PRETRIAL PROCEDURES AND MOTIONS CONTD MOTIONS AND RESPONSES FILED BY THE PARTIES ASKING THE JUDGE TO MAKE A RULING OR ORDER ON SOME MATTER RELATING TO THE CASE. EXAMPLE: MOTION FOR SUMMARY JUDGMENT OR DEMURRER. 4.PRETRIAL CONFERENCE: i.e., MOTIONS IN LIMINE.

45 TRIAL JURY OR NON-JURY JURY SELECTION (VOIR DIRE), IF APPLICABLE OPENING STATEMENTS PRESENTATION OF EVIDENCE CHARGE CONFERENCE COURTS CHARGE CLOSING ARGUMENTS DELIBERATIONS CLOSING ARGUMENTS VERDICT

46 POST-TRIAL AND APPEAL MOTION FOR ENTRY OF JUDGMENT OR JUDGMENT N.O.V. MOTION FOR NEW TRIAL NOTICE OF APPEAL REQUEST FOR TRANSCRIPT AND STATEMENT OF FACTS APPELLATE BRIEFS ORAL ARGUMENTS AT COURT OF APPEALS APPEAL TO HIGHER COURT – i.e., CALIFORNIA SUPREME COURT

47 ALTERNATE DISPUTE RESOLUTION (ADR) ARBITRATION MEDIATION MINI-TRIAL OR SUMMARY JURY TRIAL

48 BY AGREEMENT, CASE IS PRESENTED TO SMALL JURY IN ABBREVIATED FASHION. PARTIES AGREE IN ADVANCE TO BE BOUND BY OUTCOME OR TO USE OUTCOME TO AID SETTLEMENT NEGOTIATIONS.

49 ARBITRATION CASE IS DECIDED BY NEUTRAL 3 RD PARTY OTHER THAN JUDGE FOLLOWING ABBREVIATED PRESENTATION OF EVIDENCE.

50 MEDIATION ASSISTED SETTLEMENT CONFERENCE LED BY NEUTRAL 3 RD PARTY WHO ACTS AS FACILITATOR AND AN ADVOCATE FOR SETTLEMENT. MEDIATOR CANNOT DECIDE CASE OR MAKE RULINGS, BUT ASSISTS PARTIES IN REACHING MUTUALLY AGREEABLE RESOLUTION.

51 WHAT KINDS OF LAW FIRMS HANDLE TORT LAWSUITS PLAINTIFFS FIRMS: SMALL and LARGE - PRIMARILY CONTINGENT FEE DEFENSE FIRMS: LARGER, HOURLY FEE, INSURANCE AND CORPORATE CLIENTS

52 WHAT A LAW OFFICE DOES IN HANDLING TORT LAWSUITS PLAINTIFFS LAWYER USUALLY INVOLVED FIRST BEFORE AND DURING SUIT BOTH PLAINTIFFS AND DEFENSE FIRMS GATHER INFORMATION TO EVALUATE THE CASE, AND TO PREPARE FOR NEGOTIATIONS, MEDIATION AND TRIAL

53 WHAT A LAW OFFICE DOES IN HANDLING TORT LAWSUITS CONTD INFORMATION BOTH SIDES TRY TO OBTAIN: ACCIDENT REPORT, IF ANY PHOTOGRAPHS MEDICAL RECORDS MEDICAL BILLS LOST WAGE INFORMATION WITNESS STATEMENTS PROJECTION OF FUTURE LOSSES

54 NEGLIGENCE

55 ELEMENTS OF NEGLIGENCE: DUTY OF CARE BREACH OF DUTY BY TORTFEASOR (UNREASONABLE CONDUCT) CAUSATION OF DAMAGES TO VICTIM (PROXIMATE CAUSE) DAMAGES TO VICTIM (ACTUAL HARM)

56 Remember – all 4 elements are required to maintain a claim for negligence! DUTY – Name the duty owed – typical to owe a duty of reasonable care DUTY – Name the duty owed – typical to owe a duty of reasonable care BREACH – How did the tortfeasor breach the duty owed? BREACH – How did the tortfeasor breach the duty owed? CAUSATION – Two prongs !! CAUSATION – Two prongs !! –Cause-in-fact But for… (usually one actor or occurrence leading to injury) But for… (usually one actor or occurrence leading to injury) Substantial Factor (multiple parties or acts lead to injury) Substantial Factor (multiple parties or acts lead to injury) –Proximate Cause DAMAGES – What injury was suffered? DAMAGES – What injury was suffered?

57 THE CONCEPT OF DUTY USE REASONABLE CARE TO AVOID INJURING OTHERS OR THEIR PROPERTY SCOPE OF DUTY: FORESEEABLE PLAINTIFFS, OR CLASS OF PERSONS TO BE PROTECTED REASONABLE PERSON/REASONABLE CARE

58 NEGLIGENCE: The failure to exercise ordinary care.

59 ORDINARY CARE: That degree of care that would be exercised by a reasonably prudent person under the same or similar circumstances.

60 Put differently, Negligence is: Doing something that a reasonably careful person would not do (a negligent act) Doing something that a reasonably careful person would not do (a negligent act) OR Failing to do something that a reasonably careful person would do (a negligent omission). Failing to do something that a reasonably careful person would do (a negligent omission).

61 WHO DECIDES HOW A REASONABLY PRUDENT PERSON WOULD HAVE ACTED?

62 MATCHING SKILLS, DISABILITIES AND CIRCUMSTANCES

63 PROFESSIONAL NEGLIGENCE OR MALPRACTICE

64 SPECIAL DUTY BASED UPON SPECIAL RELATIONSHIP EMPLOYER/EMPLOYEE PARENT/TEACHER INNKEEPER/GUEST COMMON CARRIER/PASSENGER

65 PROOF OF NEGLIGENCE

66 BURDEN OF PROOF ON PLAINTIFF

67 RES IPSA LOQUITUR (rays-ipsuh-lo- kwit-tour) (Res Ipsa for short) Elements: Exclusive control of defendant Ordinarily would not occur without negligence

68 VIOLATION OF STATUTE NEGLIGENCE PER SE MAY PRECLUDE DEFENDANT FROM INTRODUCING EVIDENCE OF DEGREE OF CARE SWIMMING POOL EXAMPLE

69 CAUSATION CAUSE-IN-FACT BUT FOR… SUBSTANTIAL FACTOR ANALYSIS

70 PROXIMATE CAUSE = LEGAL CAUSE

71 Proximate cause means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event. PROXIMATE CAUSE

72 CAUSE-IN-FACT FORESEEABILITY

73 PALSGRAF CASE OTHER EXAMPLES? In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.

74 CONTRIBUTORY NEGLIGENCE: The plaintiffs own negligence which caused or contributed to cause the occurrence or her/his injury.

75 PROPORTIONATE OR COMPARATIVE RESPONSIBILITY PLAINTIFF AND TORTFEASOR(S) EACH IS A CONTRIBUTING CAUSE MULTIPLE TORTFEASORS OTHER EXAMPLES

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77 JOINT AND SEVERAL LIABILITY MULTIPLE TORTFEASORS MAY ALL BE LIABLE IN SOME CIRCUMSTANCES, ONE TORTFEASOR MAY BE LIABLE FOR ENTIRE AWARD

78 DAMAGES

79 DAMAGES = The injury or loss the plaintiff suffered as a result of the defendants tortious conduct.

80 DAMAGES MUST EXIST TO HAVE A LEGAL CAUSE OF ACTION, OR AS WE SAY IN THE PROFESSION, TO HAVE A CASE.

81 EXAMPLES OF DAMAGES?

82 COMPENSATORY DAMAGES = DAMAGES TO COMPENSATE THE VICTIM

83 COMPENSATORY DAMAGES GENERAL DAMAGES: pain & suffering from an injury; grief from the death of a family member. Other examples? SPECIAL DAMAGES: out-of-pocket damages such as medical bills & lost wages. Other examples?

84 ECONOMIC VERSUS NON-ECONOMIC DAMAGES

85 NOMINAL DAMAGES

86 PUNITIVE OR EXEMPLARY DAMAGES INTENTIONAL TORTS GROSS NEGLIGENCE: MORE THAN MOMENTARY THOUGHTLESSNESS OR INADVERTENCE BUT SUCH AN ENTIRE WANT OF CARE AS TO EVIDENCE ACTUAL CONSCIOUS INDIFFERENCE TO THE RIGHTS AND WELFARE OF THOSE AFFECTED BY THE CONDUCT. AWARDED TO PUNISH DEFENDANT AND MAKE AN EXAMPLE, NOT TO COMPENSATE THE PLAINTIFF PAIN & SUFFERING DAMAGES ARE NOT PUNITIVE DAMAGES

87 HOW ARE DAMAGES DECIDED IN A CASE AND WHO DECIDES UPON THE AMOUNT?

88 THE JURY CHARGE: DAMAGE QUESTIONS

89 What sum of money, if paid now in cash, would fairly and reasonably compensate Rolando Dominguez for his injuries, if any, resulting from the occurrence in question? QUESTION _____ Consider the elements of damages listed below and none other. Consider each elements separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you may find. Answer separately, in dollars and cents, for damages, if any. a.Physical pain and mental anguish sustained in the past. Answer: b.Physical pain and mental anguish that, in reasonable probability, Rolando Dominguez will sustain in the future. Answer: c. Loss of earning capacity that Rolando Dominguez sustained in the past. Answer: $50, $75, $25, $50, $67,603.56

90 d. Loss of earning capacity that, in reasonable probability, Rolando Dominguez will sustain in the future. Answer: e. Disfigurement sustained in the past. Answer: f. Disfigurement that, in reasonable probability, Rolando Dominguez will sustain in the future Answer: g.Physical impairment sustained in the past. Answer: h. Physical impairment that, in reasonable probability Rolando Dominguez will sustain in the future. Answer: $240, $50, $75, $75, $100, $50, $75, $75, $100,000.00

91 i.Medical care in the past Answer: j.Medical care that, in reasonable probability, Rolando Dominguez will incur in the future. Answer: $110, TOTAL RANGE OF POTENTIAL DAMAGE AWARD:: $25, $768, $918,246.40

92 $813, $973, TOTAL POTENTIAL PREJUDGMENT INTEREST: (Beginning six months after suit was filed) TOTAL POTENTIAL JURY AWARD: TOTAL POTENTIAL JUDGMENT: $45, $55, $768, – $918,246.40

93 TORT REFORM CAPS ON NON-ECONOMIC AND PUNITIVE DAMAGES EXAMPLE IN CA.: $250,000 cap on general damages since 1975 (MICRA)

94 Practice Written Exams While walking up her apartment buildings old staircase, Ms. Tumbleenas foot crashes through the top of one step, splinters flying everywhere. Darn it! she exclaims! If Ive told the superintendent once, Ive told him a thousand times – fix that staircase! Mumbling as she found her way to her apartment. 1. Discuss Ms. Tumbleenas negligence claim(s).


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